Set Back in Kansas
September 16, 2010
Advocates of an open, transparent judiciary and judicial selection process suffered a set-back yesterday when a federal judge denied a request for a preliminary injunction against the state’s judicial nominating commission. A group of Kansas voters is challenging the state’s “merit” selection system, arguing that handing the power to pick judges over to a commission controlled by lawyers disenfranchises voters. As a lawyer for the group told reporters, “Because they [the commissioners] aren’t elected by the voters, they shouldn’t wield the power they do.”
Are Iowa Judges Accountable to the People or Aren’t They?
September 15, 2010
The Des Moines Register has weighed in with an editorial admonishing Iowans for even considering voting against the retention of three Supreme Court justices. According to the Register, voters should only remove a judge who proves “unfit” to continue serving on the bench. So the question boils down to, what’s the definition of “unfit?”
The Register and the “merit” selection crowd would have us believe that the meaning of “unfit” is limited to corruption or incompetence. But, as William Brown points out on the Iowa Republican, the Iowa Code is perfectly capable of handling the disciplining or removal of corrupt and incompetent justices, as specified in Chapter 602 of the Code. More to the point, the constitutional provision establishing retention elections does not limit the discretion of voters in determining whether or not to retain a judge.
As the supporters of the retention campaign make very clear, they believe the three justices in question have rendered themselves “unfit” because they overstepped their authority, not only by overturning Iowa’s Defense of Marriage Act, but by ordering the state to issue marriage licenses to same-sex couples. You can agree or disagree with this conclusion, but clearly the question of whether justices are exceeding their constitutionally delegated powers is fair grounds for deciding whether justices are fit to continue serving.
The Register is correct in asserting that justices are authorized to say if they believe a law is unconstitutional, but the court does not have the only say. Each branch of government has the responsibility to interpret what the constitution means when they perform their jobs. When legislators pass a bill, they are bound to consider whether that law is consistent with the constitution. When governors enforce laws, the only basis for that enforcement is that they believe the law is constitutional. No branch is more equal than the others, and none can claim a monopoly when it comes to determining what the constitution means.
In a democracy, the ultimate arbiter of what the constitution means is the people – through their choices of elected governors, legislators, and, yes, through their decision whether or not to retain Supreme Court justices. In Iowa and the rest of the United States, the people are sovereign, not the judges.
[Sidebar: The Register misleads readers by claiming that “citizen commissions” select judicial nominees – as if a panel of plumbers, teachers and police officers were reviewing court candidates. As the editors are no doubt aware, seven commissioners are appointed by the governor and seven are selected by bar association members, with the senior Associate Justice providing the 15th vote. Obviously, under Iowa’s current system, attorneys are considered a favored class when it comes to picking judges.]
Something is Rotten (with “Merit” Selection) in the State of Iowa
September 14, 2010
Proponents of “merit” selection always claim that retention elections preserve judicial accountability. But apparently their support for retention elections applies only as long as voters rubber stamp the judges hand-chosen for them by the secret nominating commissions. Indeed, the mere possibility that voters might actually exercise that right to hold a judge accountable is enough to incite panic within the “merit” selection movement.
In Iowa, three Supreme Court justices face tough retention elections after overturning Iowa’s recently enacted law protecting traditional marriage. So, last week a cabal of “merit” selection supporters – including the movement’s Grande Dame, former U.S. Supreme Court Justice Sandra Day O’Connor – rushed to the state to instruct voters that retention elections were never really intended to allow people to hold activist judges accountable.
In Justice O’Connor’s words, judges need to “be protected from retaliation for their judicial actions.” What can that possibly imply, other than telling Iowans they shouldn’t use retention elections to hold judges accountable?
Another panelist, Dean of the Drake University Law School, Allan Vestal, was even more forthright. As one observer put it, Dean Vestal’s remarks amounted to “a five point diatribe about why Iowa’s judicial retention votes should not be used as a referendum on a particular court decision.”
An interesting, but unreported, sidebar: The event was paid for by the Committee for Economic Development – a Washington-based group that has hauled in nearly $1.3 million from George Soros’ Open Society Institute, according to the report my organization, the American Justice Partnership, released last week.
Detroit News on Soros’ Campaign to “Kill Judicial Elections”
September 14, 2010
In today’s Detroit News, Deputy Editorial Page Editor Jeffrey Hadden authors a column on the report my organization, American Justice Partnership, released last week. The report, “Justice Hijacked,” brings to light the $45 million+ national campaign that Soros’ Open Society Institute is quietly funding in an effort to eliminate democratic judicial elections in favor of so-called “merit” selection. As American Courthouse readers know, under “merit” selection a panel of legal elites meets behind closed doors to select judges for state courts.
Hadden’s column is a must-read. Here’s an excerpt:
“There is a human tendency to which judges and lawyers are no less prey than members of other professions to be self-serving and self-aggrandizing. A lot of lawyers and judges would like an ever-expanding sphere of power in which judges and lawyers get to make all of the decisions in a society and everyone else has to pay their fees while they do it.
“It’s not a bad thing for ordinary voters to have a chance to remind them that they answer to the public, not each other. An old joke has it that elections for judges produce politicians and appointments for judges produce friends of politicians. If we’re going to have politicians involved in the process, we ought to do so openly, where everyone can see what’s going on.”
Hadden’s argument is an important one that needs to be heard, especially in Michigan. The anti-election crowd is pushing for a Constitutional Convention in hopes of changing the state Constitution, eliminating elections, and installing “merit” panels for judicial selection.
Justice Hijacked: The $45 Million Campaign (And Counting) to Abolish Judicial Elections and Reshape America’s Courts
September 9, 2010
Answer: At least $45 million.
Question: How much has billionaire hedge fund titan George Soros spent over the past decade to make our courts less democratic?
At a Heritage Foundation-sponsored event today, the American Justice Partnership (which I head) released a new report that provides the first ever comprehensive review of the lavishly-funded network of groups underwritten by Soros’ political operation, the Open Society Institute (OSI). I’ll be speaking about the report’s findings at a Federalist Society luncheon tomorrow.
The report details 10 years of contributions to more than 40 organizations across the country totaling at least $45.4 million. When you add in the additional $52.5 million given to these same groups, the total comes to nearly 100 million staggering dollars. No wonder the American Bar Association, which has raked in over $2.3 million from OSI, gushed in the ABA Journal that Soros “could bring more change to the justice system and legal profession than anyone since a small group of founders crafted the Constitution.”
But, as American Courthouse readers know, unlike the Founders, who believed government must be accountable to the people, the “Open Society” Institute is working to make our courts less transparent, our judges less accountable, and the judicial selection process more secret. Please read the full report – I’ll post more findings in the weeks ahead.
Citizens United Hysteria Watch, Vol. 1
September 8, 2010
Remember the U.S. Supreme Court’s Citizens United decision? The one that was supposed to generate a tsunami of corporate cash in political races? The one that put a giant “for sale” sign on legislatures, courts and capitals across America? Well, as of September 1, according to a USA Today report not a single company surveyed plans to spend corporate money to run independent ads calling for the election or defeat of any candidate. Zilch. Nada. Zippo.
Doctors to Treasury Officials: No Tax Breaks for Lawsuits
September 8, 2010
Last week the American Medical Association joined 90 medical organizations in sending a letter to the U.S. Treasury Department objecting in the “strongest possible terms” to a proposal under consideration that would allow trial lawyers to deduct litigation expenses from their taxes. (PointofLaw.)
Trial lawyers bragged about this tax break during their annual conference in Canada in July. The proposal would give lawyers a 40% tax subsidy for up-front litigation costs.
The AMA estimates that it costs $22,000 to defend against meritless suits. According to James Rohack, former president of the AMA,
“Changing the tax policy to allow trial attorneys to deduct court costs and other expenses would cost taxpayers $1.5 billion and increase the cost of health care in our nation….This change would encourage trial attorneys to file more lawsuits.”
Treasury officials are keeping mum about the proposal, refusing to comment. Maybe they’ll answer Congress. According to PointofLaw, Sen. Chuck Grassley (R-IA), and Rep. Dave Camp (R-MI) have sent a letter to Treasury asking about the proposal.
Kansas Dust Storm
September 1, 2010
Two years ago, a group in Johnson County, Kansas promoted a ballot measure to restore the right to vote for county judges and end the local “merit” selection board. They unfortunately came up short - in large part due to the fact that “merit” proponents outspent supporters of democratic judicial elections 3:1 to defeat the measure, with most of the money coming from legal elites.
A group of Kansas voters is again calling into question the “merit” selection process. The Kansas Reporter (published by Kansas Policy Institute) has an article describing the effort to get rid of “merit” committees in Leavenworth and Atchinson counties. A petition is circulating in those counties in hopes of placing the issue on the November ballot. Petition supporter Donna Gillett says lawyers are the problem - four of the nine members on the “merit” panel are elected by lawyers:
“The appointment system denies the citizens of this district the right to participate equally in the selection of our judges.”
The Kansas Reporter also describes a separate anti-”merit” group led by election lawyer, James Bopp. The group has filed a lawsuit in federal court in Wichita to stop five members of the Kansas Supreme Court Nominating Commission from participating in judicial selection - all five are lawyers and all were elected by the state bar association.
As with the petitioners, Bopp also believes the favored treatment of the legal class is a problem when it comes to the state’s “merit” process. In fact, he believes Kansas’s “merit” selection law violates both the U.S. Constitution and the Kansas Constitution:
“If the Kansas Constitution said that the AFL-CIO is going to select judges, or the Right to Life or KKK or whoever, it would be perfectly obvious that would be wrong and this is equally wrong,” Bopp said. “There is nothing special about lawyers, and they’re more conflicted because their bread and butter is personal injury, and judges determine those cases, so many lawyers have an interest in who is the judge.”
“Nothing special about lawyers” — couldn’t have said it better myself.