Election Fallout Leads to Calls to End “Merit” Selection in Arizona
November 18, 2010
The aftershocks from the November elections – where Iowans dumped three activist Supreme Court justices and Nevadans soundly defeated a “merit” selection initiative – continue to reverberate, this time in Justice Sandra Day O’Connor’s home state of Arizona.
Arizona Republic columnist Robert Robb has a piece calling on those who “value an independent judiciary” to “abandon their defense of the current merit selection system…” Robb contends that a “critical mass of the electorate” regards “merit” selection “as having insufficient accountability.”
While Robb does not go so far as to embrace judicial elections, he proposes allowing the elected governor to nominate judges, free from the constraints of an unelected, unaccountable “merit” panel, with appellate nominations subject to Senate confirmation.
With even Arizona buckling, we may look back on 2010 as the year when Americans seized back control of their courts from the legal elites.
An Appeal to a Half-Hearted “Merit” Proponent
November 12, 2010
Meryl Chertoff of the Aspen Institute’s Justice and Society Program has a thoughtful piece in the Huffington Post that purports to correct some “myths” about judicial elections, but is most useful for revealing the crumbling arguments behind “merit” selection.
Ms. Chertoff leads off by characterizing the Nevada ballot initiative that went down in flames last week as having “broad bipartisan support.” Apparently not broad enough! – it got hammered by a broad bipartisan majority: 58% to 42%. She then rolls out Sandra Day O’Connor, as if the mere appearance of such a mighty legal eminence should be enough to sway the ignorant masses into giving up their role in choosing the judges who serve them.
Alas, Ms. Chertoff informs us, most of what Americans “think they know” about judges “is wrong.”
Ms. Chertoff refers us to Article II and III of the Constitution for a little civics lesson in how federal judges are chosen. She suggests “merit” selection is a “hybrid” between the federal system and elections, but fails to point out the absolutely crucial distinction. Under the federal system, judges are nominated by a president elected by the people and confirmed by senators elected by the people. So critical is the good opinion of the people about the kind of judges that presidents and senators will favor that entire campaign speeches, TV ads and platform planks are dedicated to this issue alone.
This is precisely what the Founders intended. Read more
Alexander Hamilton Comes Out Against “Merit” Selection
November 11, 2010
The Federalist Papers are rightly regarded not just as the most compelling argument in favor of the U.S. Constitution, but as one of the greatest discussions of political philosophy in human history. In thumbing through a dog-eared old copy recently, I was astounded to stumble onto this gem from Alexander Hamilton (Federalist 76), outlining in the most clear, coherent terms the case against “merit” selection of judges.
Over 220 years ago, Hamilton and other Framers of our Constitution understood the problems inherent in vesting the power of appointment to high public offices (such as judgeships) in a committee (such as a “merit” board). According to Hamilton:
“The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much less liable to be misled by the sentiments of friendship and of affection.” [emphasis Hamilton’s]
Hamilton also rebutted the notion that a committee of experts would do a better job appointing judges. He went so far as to “lay it down as a rule” that “one man of discernment is better fitted to analyze and estimate” the qualifications for office “than a body of men of equal, or perhaps even of superior discernment.”
Hamilton knew that when a committee retreats behind closed doors, as “merit” panels typically do, that the ideological leanings and personal proclivities of each board member will determine who is nominated. He explicitly pointed out that “the intrinsic merit of the candidate” has little to do with the final selection.
“… in every exercise of the power of appointing to offices, by an assembly of men, 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 the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight….And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.” [emphasis mine]
Hamilton’s paper opposing “merit” selection expounded on James Madison’s Federalist 39, which, as I’ve pointed out repeatedly, called it “essential” that our government “be derived from the great body of society, not from an inconsiderable proportion, or a favored class of it.” Even judges, Madison wrote “be the choice, though a remote choice, of the people themselves.”
The brilliance and insight of Framers like Hamilton and Madison shines down on us through the ages. Two of the most important architects and proponents of our Constitution clearly anticipated and warned against the dangers of anti-democratic systems of choosing our public servants on the bench, such as “merit” selection. It’s time for Justice O’Connor, Justice at Stake and the whole George Soros-sponsored network of judicial activists to stop misleading Americans by suggesting that our Founders would have supported their elitist scheme to take control of our courts away from the people and their elected representatives.
Act Like Politicians, Get Treated Like Politicians
November 9, 2010
Thomas Sowell pens an excellent column today: “Stopping Judicial Imperialism.” Sowell responds to the events in Iowa last week where three state Supreme Court judges were tossed off the bench by the citizens of Iowa. Iowans’ actions have the mainstream media and elites across the nation tut-tutting and wringing their hands.
Sowell makes a clear, forceful point: “If [judges] are going to act like politicians, then they should be voted out like politicians.”
Sowell writes:
“Those who believe in gay marriage are free to vote for it. But, when they lose that vote, it is not the role of judges to nullify the vote and legislate from the bench. Judges who become politicians in robes often lie like politicians as well, claiming that they are just applying the Constitution, when they are in fact exercising powers that the Constitution never gave them….Being a judge does not mean being given arbitrary powers to enact the liberal agenda from the bench, which means depriving the citizens of their most basic rights that define a free and self-governing people.”
Total Recall
November 8, 2010
Great Wall Street Journal editorial over the weekend on the decision by Iowa voters to recall three Supreme Court justices and the tendency of lawyer-dominated “merit” selection panels to promote activist judges. Money graph:
“Far from a beacon of independence, the three Iowa justices were fired because they put their own political preferences above their commitment to the law. If judges want to avoid recalls, they should leave social legislation to legislators.”
Investor’s Business Daily also weighed in with a strong viewpoint on the Iowa recall vote. “Even those who legislate from the bench would be wise not to ignore we the people,” the IBD editorial said.
“We’ve often complained about the power of unelected judges who, when not circumventing the U.S. Constitution and those of their respective states, are busy inventing new rights that often conflict with the will of the people, even after voters or their elected representatives have voted the opposite way.”
“Few voters are even aware that they are allowed to throw these rascals out too. We suspect and hope that will change, considering the power judges have over our lives and our society. In Iowa, at least, voters have looked at the imperial judiciary and recognized these three emperors had no clothes.”
Americans Want Judges to be Accountable
November 5, 2010
A USA Today editorial suggests Iowa voters sent a “chilling message” by voting not to retain three Supreme Court justices on Tuesday. Actually, the only message Iowans sent was that judges should be accountable for their conduct in office, just like every other public servant.
The Supreme Court itself ignited the controversy in Iowa when it overturned the traditional marriage statute adopted by the elected legislature. Rather than deciding that questions of social policy are properly determined by the people through their elected representatives, the Iowa Supreme Court waded in and imposed its own ideological view on the state. Regardless of your personal views of gay marriage, the question of whether judges exceed their authority by making policy is a legitimate issue for voters to take into account in a retention election.
What USA Today and other critics of the people of Iowa seem to want is not a judiciary that is independent, but a judiciary that is imperial – above any form of criticism and beyond any accountability to the people. Iowa voters rightly rejected that theory on Tuesday.
More on Soros’ Secretary of State Project
November 5, 2010
As I mentioned yesterday, George Soros was a big loser in Tuesday’s elections. Ballot News has a very comprehensive overview of how badly his Secretary of State Project fared. Here’s an excerpt:
The SOS Project has had, at least for the past two election cycles, an impressive track record. Between 2006 and 2009, nine of the eleven candidates the organization backed, both in terms of endorsements and financial support, won their respective contests. This year, however, represented the first significant setback for the George Soros-funded group. Out of the seven candidates the 527 political organization endorsed in the 2010 election cycle, five of them - Bernie Buescher (Colorado), Michael Mauro (Iowa), Jocelyn Benson (Michigan), Maryellen O’Shaughnessy (Ohio), and Ben Nesselhuf (South Dakota) – lost on November 2nd; another, Minnesota Secretary of State Mark Ritchie, narrowly escaped defeat by political newcomer Dan Severson. Additionally, while New Mexico Secretary of State Mary Herrera did not officially carry the endorsement of the 527 political organization, she did receive considerable financial support from them during her initial secretary of state campaign in 2006; Herrera, whose office has faced considerable accusations of ethical misconduct, lost handily to State Senator Dianna Duran.
Is George Soros Becoming an Anchor?
November 4, 2010
The Left had a bad night on Tuesday, and one of the worst was had by liberal moneybags George Soros. Yesterday I pointed out that a “merit” selection initiative lost in a landslide in Nevada, despite major support from Soros-funded Justice at Stake. Writing in the Washington Examiner, Mark Hemingway points out that Soros’ Secretary of State Project – which is dedicated to tilting election law toward Democrats – also was a big loser.
On Election Day, Republicans won 17 of the 26 Secretary of State races, including in my home state of Michigan where Republican Ruth Johnson trounced Jocelyn Benson. Interestingly enough, Benson’s Soros connection became a significant issue in the campaign, and was even the subject of this devastating campaign ad.
Oh, and the pot legalization plan Soros supported in California went up in smoke as well.
Why Won’t Justice at Stake Come Clean on Its Support for “Merit” Selection?
November 3, 2010
Justice at Stake is in a lather again because Glenn Beck (along with a recent Wall Street Journal editorial and op-ed) called attention to the $45 million campaign George Soros’ Open Society Institute has been waging to promote a host of schemes, including “merit” selection, that would radically change America’s courts. Among the goofier rebuttals is the claim that Justice at Stake ($5.8 million in Soros money) doesn’t really support “merit” selection. Give me a break.
As Ed Whelan pointed out the other day on NRO’s Bench Memos, Justice at Stake was a major contributor to Nevadans for Qualified Judges, which promoted … you guessed it! – “merit” selection. A casual review of the group’s October 19th contribution and expense report filed with the Nevada Secretary of State reveals that Justice at Stake was actually the second biggest contributor to the campaign during the most recent quarter, behind only casino mogul Steve Wynn’s Wynn Resorts.
I understand that Justice at Stake would prefer to keep all this quiet so it can keep perpetuating the myth that the “merit” selection movement is some kind of spontaneous public uprising, rather than a phony “grassroots” charade bought and paid for by a billionaire hedge fund tycoon. But does Justice at Stake really think that conservative groups don’t have access to the Internet and can’t instantly “fact check” its ridiculous claims?
Elections a Big Victory for Judicial Accountability
November 3, 2010
In addition to sending shock waves through Washington, voters on Tuesday sent another clear and unambiguous message: We want judges to be accountable to the people they serve.
In Nevada, voters crushed a ballot proposal that would have stripped them of their democratic right to vote for judges and transferred power to a tiny cabal of legal elites. With two-thirds of precincts reporting, according to a Las Vegas Sun report Question 1 was getting hammered 58% to 42%. Apparently, Sandra Day O’Connor’s incessant lobbying and 1:00 am robocalls backfired disastrously.
In Iowa, in a push-back against judicial arrogance, voters dumped three sitting Supreme Court justices who were up for retention – the first time in history that any justice lost a retention election. Voter outrage erupted when an activist court overstepped its authority by overturning the legislature’s ban on gay marriage and forcing the state to grant marriage licenses to gay couples.
In Michigan, conservatives regained control of the Supreme Court, with Robert Young and Mary Beth Kelly defeating trial lawyer-backed opponents. Rule of law justices will once again be a majority on Michigan’s high court.
(For additional state court election results, I recommend Ed Whelan/Gary Marx’s updates over at Bench Memos and the Legal Newsline’s rundown.)
As a recent report by the American Justice Partnership (which I run) reveals, the uber-liberal Open Society Institute has spent over $45 million in the last decade in an attempt to fundamentally alter America’s judiciary. Every so-called “reform” the Soros-bankrolled network and its leader, Justice at Stake, support, including “merit” selection, is aimed at reducing the power and input of ordinary citizens when it comes to deciding who will serve us on the bench. On Tuesday, voters loudly proclaimed that even George Soros’ millions can’t buy our courts.