Sandra Day O’Connor v. The People
October 29, 2010
Blockbuster op-ed in today’s Wall Street Journal that hits on the O’Connor-robogate scandal in Nevada, but also lifts the rock on her deeply political crusade for “merit” selection.
Attorneys David Rivkin, Jr. and Andrew Grossman point out that the “merit” selection campaign is being driven by $45 million from “liberal moneyman” George Soros – a figure revealed in recently released report, Justice Hijacked, by the American Justice Partnership (which I chair).
Rivkin and Grossman rightly connect the dots and conclude that support for “merit” selection is “an investment in judicial activism.”
“Selection boards get captured by trial lawyers, academics and antibusiness activists. They nominate plaintiff-friendly judges and state legislatures rubber-stamp them. Rather than play to the voters, would-be judges play to the special interests that dominate the commissions. This campaigning takes place behind closed doors. One Missouri judge called the process ‘exclusive, secretive and political.’”
Read the whole article.
The Strange Case of Justice O’Connor
October 29, 2010
The brouhaha over Justice O’Connor’s 1:00 am robo-calls to lobby Nevada voters over a pending ballot initiative keeps getting stranger. According to the Legal Times blog, Justice O’Connor now claims she “did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents.” I’m sure Nevadans awoken in the middle of the night are relieved – but it does raise the question: exactly what did Justice O’Connor think was going to happen with her recorded campaign statement? What did she “authorize” and when did she authorize it?
Justice O’Connor also wants us to know that she thinks her electioneering is “consistent with the Code of Conduct for U.S. Judges” – which frowns pretty severely on judges getting involved in politics. Very reassuring. But shouldn’t the determination of whether robo-calls are permitted under the Code of Conduct be made by someone – how do I put this delicately – a little more “objective” than the possible offender herself? Even O’Connor’s public defenders can’t seem to rally a very convincing argument on her behalf – mostly a variation of “she didn’t break the rules” – and even if she did the rules don’t apply to her anyway.
Ed Whelan at National Review Online’s “Bench Memos” points out that a court decision in which O’Connor participated right around the time of her robo-call flap could be construed as helping a political cause for which she advocates. While Whelan does not believe she made the decision specifically to advance her political views, he rightly calls the situation “an illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge.”
It’s Justice O’Connor Calling
October 27, 2010
For years, former U.S. Supreme Court Justice Sandra Day O’Connor has been making the case for removing politics from the judicial selection process. So what on earth is she doing waking up Nevada voters with robocalls at 1 o’clock in the morning to lobby them on how to vote on a November ballot initiative?
It’s one thing for the distinguished jurist to lend her prestige and intellectual firepower to the “merit” selection cause, even if I happen to disagree with her. But it’s entirely another for her to stoop to one of the crassest forms of political hucksterism. What’s next – signing direct mail pieces? Digging through trash cans doing some oppo-research?
Actually, the issue goes beyond just personal embarrassment – as mortifying as that must be. Ed Whelan over at National Review’s “Bench Memos” raises the question of a possible ethical breach. (Gary Marx, also at Bench Memos, asks a host of interesting questions regarding O’Connor’s activity in Nevada.)
Although retired from the Supreme Court, Justice O’Connor retains senior status and still sits in on some lower federal court cases. Just yesterday, Whelan points out, O’Connor cast the deciding vote in a Ninth Circuit case, siding with the plaintiffs, who included the League of United Latin American Citizens Arizona and the Arizona Hispanic Community Forum. Interestingly enough, Whelan writes, Justice O’Connor also taped a TV ad in Nevada, dubbed in Spanish to appeal to Hispanic voters.
The ethical code for U.S. judges clearly prohibits states that a judge “should not engage in any other political activity.”
I’m not judicial ethics expert, but robocalling voters sure sounds like “political activity” to me.
Why Not “Merit” Selection for Congress?
October 26, 2010
“House and Senate candidates have already shattered fundraising records for a midterm election,” the Washington Post informs us in a front page, above-the-fold article today, “and are on their way to surpassing $2 billion in spending for the first time, according to new campaign finance data.”
Which got me thinking … since the primary argument behind “merit” selection seems to be that an explosion of campaign cash imperils our judiciary, why not apply the same reasoning to our Senators and Congressmen?
Between 2000 and 2009, nearly $207 million was spent on state judicial races, according to a widely-cited new report by Justice at Stake (funded by George Soros; $5.8 million), the Brennan Center for Justice (funded by George Soros; $12 million) and the National Institute on Money in State Politics (funded by George Soros; $2.2 million). If $207 million spread out over an entire decade is somehow a threat to democracy, ten times that amount spent in a single election cycle must call for even more drastic reforms.
Of course, anyone who suggested appointing a panel of “experts” to retire behind closed doors and pick our representatives in Congress would rightly be howled down by editorial boards and political commentators on both the Left and Right. But why is the suggestion any less absurd when it comes to choosing judges?
Judges, after all, are just public servants. They are no better (and no worse) than the people we elect to fill our legislatures and governor’s mansions, or Congress and the White House. Legislators make the law for all citizens, not just for those who contribute to their campaigns. Governors execute the law for all citizens, without favoritism to campaign contributors. And judges interpret the law for all citizens, with no bias toward lawyers or litigants who supported their election or appointment.
Getting High on “Merit” Selection
October 26, 2010
Question: What do “merit” selection and legalized marijuana have in common?
Answer: Both causes are being underwritten by mega-billionaire George Soros, who has already invested at least $45 million to change America’s courts and plans a “significant contribution” to the pro-Prop. 19 campaign in California, which would legalize pot use.
Possible Connection: Mr. Soros believes voters who are stoned will be more amenable to giving up their right to vote for judges and handing the job over to a cabal of lawyers.
Shut Up, They Argued
October 25, 2010
Justice Hijacked – the recent report released by the American Justice Partnership (which I run) – must be hitting a nerve. Last Friday, Justice at Stake – one of the prime financial beneficiaries of hedge fund billionaire George Soros’ $45 million campaign to radically change America’s courts – flipped out over a Wall Street Journal editorial that shined the spotlight on efforts by the Soros-bankrolled network to abolish democratic judicial elections in Nevada.
The closest thing they make to an argument is that Justice at Stake and the other groups funded by Mr. Soros are completely agnostic on “merit” selection. That’s kind of like the Chamber of Commerce claiming it doesn’t have any position on free enterprise.
Of course, Justice at Stake would have preferred that no one connect the dots and reveal the entire “merit” selection campaign for what it is: a push for a more liberal, more activist judiciary. Now that the public has taken notice and has begun pushing back against “merit” selection and the judges it produces in places like Nevada and Iowa, it’s no wonder that Justice at Stake is running for cover, reaffirming Justice Brandeis’ famous dictum that sunshine is the best disinfectant.
The Right Vote in Nevada: Trust the People, Not the Elites
October 25, 2010
Nevadans have gotten a lot of political pressure this election season from former U.S. Supreme Court Justice Sandra Day O’Connor, Justice at Stake and the whole George Soros-bankrolled “merit” selection campaign juggernaut to give up their right to vote for state Supreme Court judges and hand the power over to an elite group of lawyers.
Last week, the Las Vegas Review-Journal cut through the clutter with a clear editorial that eviscerates the gold-plated, focus-group-tested arguments of the “merit” selection crowd:
“There is scant evidence that creating a committee to select judges actually removes the politics from the process – in fact, it simply shifts the political concerns into a different arena, aiding those who are in good with the elites making the choices. In addition, Nevada voters over the long haul have done a pretty good job of quickly getting rid of the bad jurists who managed to slip past them.
“The bottom line: Those who favor this proposal simply don’t trust the voters. We do, and we are extremely reluctant to recommend that Nevadans cede some of the minimal power they have over the judiciary.”
Lifting the Rock in Nevada
October 22, 2010
Great editorial in the Wall Street Journal today, lifting the rock on the effort to abolish democratic judicial elections in Nevada and put “the responsibility for courts in the hands of a legal elite, instead of with voters or elected representatives.” As the editorial makes clear, the campaign is being pushed by George Soros-financed groups like Justice at Stake, which “see the state courts as the next frontier for moving [their] political agendas.” (The Journal also quotes a recent study by the American Justice Partnership, which I run, revealing that Soros has dumped over $45 million into anti-election campaigns nationwide.)
Justice at Stake and other Soros-bankrolled groups try to fool the public into believing that the move toward “merit” selection is some kind of organic, grassroots uprising. But Nevadans have already voted down “merit” selection proposals twice – and polls show 71% of voters prefer judicial elections over other systems. As the Journal cleverly puts it, “Nevada voters should send a message that their judiciary can’t be bought” – by George Soros or anyone else.
Who Trusts the Voters?
October 21, 2010
Proponents of “merit” selection typically argue that doing away with democratic judicial elections in favor of a secret selection committee is all about eliminating “politics from the process.” Another argument they like to trot out is that “too much money in judicial elections creates the ‘appearance’ of impropriety.” (Here, I put the lie to these arguments.)
But in their more revealing moments, the “merit” crowd lets down its guard and reveals its true feelings: “Voters. You just can’t trust ‘em.”
You don’t hear this one as much because even “merit” supporters must surely know that “the people can’t be trusted” isn’t a winning argument. But there it was again…in full display earlier this week in an article from the Las Vegas Review-Journal entitled, “Voters have a hard time picking judges.”
As American Courthouse readers know, Justice at Stake and its network of allies have made Nevada a primary target in their national campaign to roll back democratic judicial elections. A ballot initiative — “Question 1″ — would amend the state constitution to change the judicial selection process from democratic election to “merit” selection.
In arguing in favor of the ballot initiative, UNLV law professor, Jeff Stempel, had this to say:
“In my opinion, asking the average voter to be fully informed on 29 races would be asking them to do the impossible….It’s too much to ask voters to get to know every candidate…The rules make it too difficult for laypersons. It’s tough for me, as a lawyer, to research candidates. What does it mean when they say, ‘I’ll be tough on crime,’ or ‘I have integrity?’ We have no way to quantify those kinds of statements.”
Candidates regularly make these kind of claims - “I’ll be tough on crime. I have integrity, character, etc.” - when running for governor, Congress or the presidency. And we leave it up to voters to determine whether that’s an important argument or not. So is Prof. Stempel suggesting that voters are incapable of “quantifying those statements” when pulling the lever for those offices? Of course he’s not.
Because, in addition to believing that voters are too stupid to know which judge to vote for, he is part of the camp which believes that, upon donning black robes, judges are no longer ordinary human beings and should therefore not sully themselves with such things as accountability to the people.
Rather than have me make the argument, I’ll let Brian Brown, the author of an op-ed in the USA Today earlier this week, have the last word. I believe he put it quite well when he wrote this about the retention elections in Iowa:
“This is the United States of America, not the former Soviet Union. If we have an election, we allow individuals and groups to make their cases before the people, and then the people decide.
“But many elites don’t trust the people. They don’t trust the voters to make up their own minds after hearing and seeing all of the ads and arguments. On this we profoundly disagree.
“’Of the people, by the people, for the people’ is not just a pleasant sounding patriotic phrase. Judges derive their authority from the people, who are truly the sovereign in this great country.
“Judges are not above the citizenry. The voters of Iowa have the civil right, and duty, to hold their judges accountable.”
What Does Judicial Independence Mean?
October 15, 2010
During an interview last night on the PBS NewsHour, former U.S. Supreme Court Justice Sandra Day O’Connor repeated her familiar arguments about the danger of campaign contributions in state judicial races, which she sees as a threat to judicial independence. As she put it:
“The concept of the framers of our Constitution in creating three branches of government, when they came to the judiciary, they wanted it independent of the other two branches, so that it could do its job to fairly and freely interpret the laws [of the] Constitution … without the threat of retaliation by the other two branches.”
Of course, this is true, as far as it goes. The Framers wanted each branch to be co-equal and independent of the others in its tasks assigned by the Constitution. For the judiciary, the Framers established that judges should hold their seats during good behavior and forbid Congress from reducing a judges pay during his/her tenure on the bench.
But, in addition to independence, the Framers believed in another virtue as well – the virtue of accountability. As James Madison wrote in Federalist 39, the “persons administering” our government must “be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves.” This is why Justice O’Connor was appointed by a president who was elected directly by the people and confirmed by senators also directly accountable to the people.
What Justice O’Connor seems to be aiming for is not a judiciary independent from the other branches of government, but a judiciary independent and unaccountable to the people. Under the “merit” selection system she supports, judges are selected by a committee typically dominated by lawyers that is unelected and accountable to no one.
What would the Framers have thought of “merit” selection? As I’ve pointed out many times here, Madison stated uncategorically (in Federalist 39 again) that our government must be “derived from the great body of society (i.e. voters), not from an inconsiderable proportion, or a favored class of it (i.e. a committee of lawyers).”
Alexander Hamilton went even further. Writing in Federalist 76, Hamilton laid down what he called a “rule” that “one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to peculiar offices, than a body of men of equal, or perhaps even of superior discernment.” In other words, a single president (or a governor) is better able to select judges than a committee of experts. In Hamilton’s words:
“The sole and undivided responsibility of one man [or woman] will naturally beget a livelier sense of duty and a more exact regard to reputation….He [or she] will have fewer personal attachments to gratify than a body of men [and/or women]…”
“[I]n every exercise of power of appointing to offices by an assembly of men [and/or women], we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances will of course be the result either of a victory gained by one party over another, or of a compromise between the parties. In either case, the intrinsic merit [yes, Hamilton used that word!] of the candidate will be too often out of sight.”
Some 222 years ago, Hamilton anticipated one of the fatal flaws with “merit” selection – namely that when a group of lawyers meets to deliberate about judicial candidates, their own personal political and ideological views will shape the decisions, not any objective standard of merit.
If Justice O’Connor wants to see state judiciaries that balance the Framers’ demand for both independence and accountability, she should drop her support for “merit” selection. Or at least admit she has a radically different vision of our courts than either Madison or Hamilton.