A Step Toward Democracy in Kansas
February 25, 2011
The Kansas State House adopted legislation this week to take judicial selection out of the hands of trial lawyers and other legal special interest groups and provide more public oversight. The bill, which passed 67-46 would replace the state’s “merit” selection system and allow the elected governor to appoint judges, with confirmation by elected Senators. While judicial accountability would be more direct under democratic elections, this is certainly a good step toward breaking up the lawyers-monopoly when it comes to picking our public servants on the bench.
In an interesting sidebar, Judge Richard D. Greene, the Chief Judge of the Kansas Court of Appeals, took to the op-ed pages to lobby against the bill, which raises an interesting moral dilemma for the “merit” selection crowd. The question of how judges ought to be selected is an important political decision properly left to the people and their elected representatives. While “merit” selection is supposed to keep politics out of the courtroom, Judge Greene certainly didn’t hesitate to deploy the full prestige and power of his position to wade into an inherently political discussion. He could easily have written as Rick Greene, private citizen, or even as Richard Greene, Esq. Instead, he politicized his judicial office by lobbying legislators.
So where are the expressions of outrage from “merit” selection advocates about the impropriety of sitting judges getting hip-deep into politics?? What about a lecture from Sandra Day O’Connor about the threats to judicial independence when judges act like Gucci-wearing lobbyists?
In his article, Judge Greene rolls out a new twist on the “people are stupid” argument so cherished by the “merit” selection campaign. “Merit” selection should be preserved because “we need our best and brightest to be judges” and we’ll only have high quality courts “if we continue to seek the best and brightest for our judges – not politicians selected for their viewpoint or agenda.” Translation: When lawyers pick judges, you get the “best and brightest” – when ordinary citizens or their elected representatives pick judges you get political hacks.
The arrogance is truly breathtaking.
Elections Make the Difference in Louisiana
February 21, 2011
Louisiana has long been a legal backwater, famed for tort-friendly courts and a legislature bent on protecting its trial bar allies. A few years back, a group called the LCRM – the Louisiana Committee for a Republican Majority – was formed to help recruit and train candidates who understand the link between a fair, predictable legal climate and a state environment capable of generating growth and jobs. The group I lead in my non-blogging life – the American Justice Partnership – was an early partner in this effort.
Over the weekend, Republican Jonathan Perry captured a vacant Senate seat, giving Republicans control of the state Senate for the first time in modern history. As U.S. Senator David Vitter, the driving force behind LCRM, put it, “when we formed LCRM just a few years ago, a majority in the House seemed to many a pipedream – a majority in the Senate an impossibility. Now we have both, along with every statewide elected office.”
Time now for Louisiana’s new majority to get down to the business of undoing decades of trial lawyers’ damage to the state’s courts.
Reductio Ad Absurdo: “Merit” Selection in Florida
February 18, 2011
Florida Governor Rick Scott’s appointment of Circuit Court Judge Burton Conner to the Florida Court of Appeals is “causing concern” among the legal establishment, according to media reports. Is Judge Conner too inexperienced to serve on the bench? Not according to two other judges who pronounced him “very well qualified.” Did Judge Conner commit some serious ethical breach? Not as far as anyone can tell.
So what’s the problem?
It seems that upon appointing Judge Conner, Governor Scott praised the judge’s “values and judicial conservatism,” along with his “great reputation in the community” and “great law-and-order demeanor.”
Sounds pretty milquetoast to me – the sort of boilerplate that accompanies hundreds of gubernatorial appointments. But not to Florida’s legal grandees.
“Unsettling!” screeched retired Judge Gary Farmer, who recommended Judge Conner for the vacancy. “What it says to me is, the governor has an agenda with judges.”
Judge Roger Colton also scolded Governor Scott: He “should be saying ‘I picked the most knowledgeable, fair, just, equitable candidate.” Well!
Actually, what’s really “unsettling” is the notion that it’s some sort of outrage for a governor to select judges he believes represent the values and judicial philosophy of the people who elected him. Yet this deeply undemocratic notion is one of the central conceits of the entire “merit” selection campaign.
As former Michigan Supreme Court Chief Justice Clifford Taylor has pointed out, the idea that judicial selection can be reduced to some antiseptic examination of credentials – like who got an A+ in Contracts, rather than just an A back in law school – is, to put it kindly, wishful, naïve and preposterous thinking. In ALL systems of judicial selection, the values, ideological leanings and personal proclivities of SOMEONE dictate who which judges will be chosen. With judicial elections, it’s the people; with gubernatorial appointments, it’s the elected governor who is accountable to the people; under “merit” selection, it’s the commissioners who sit on the nominating boards and are accountable to no one.
Iowans Fighting Back Against “Rigged System”
February 17, 2011
The courageous decision of Iowa voters to dump three activist state supreme court justices last November continues to reverberate. The Gavel Grabbers over at Justice at Stake report that Iowa Chief Justice Mark Cady is pushing a “campaign not to campaign” for state judges because “campaigning” in front of voters “threatens one of our core values, which is independence.”
But Chief Justice Cady isn’t talking about “independence” as our Founders and constitutional authors understood it – meaning independence from the other co-equal branches of government. What Chief Justice Cady wants (along with so many other legal elites) is something far more radical – a judiciary that is completely independent from and unaccountable to the people they serve. That’s not judicial independence, it’s judicial supremacy.
Meanwhile Bob Vander Plaats, who helped engineer the defeat of the three Iowa justices, points out that the state’s “merit” commission is currently comprised of 12 Democrats, one Republican and one independent – which he aptly describes as a “rigged system.”
So let me get this straight: Handing judicial selection over to a tiny commission dominated by one political and completely unaccountable legal special interest guarantees judicial “independence.” But having judges go before the people to explain what judicial philosophy guides their decision-making somehow represents a threat to democracy?
Is That All You Get for $2.1 Million?
February 17, 2011
I guess I should be flattered. It seems the uber left-wing group People for the American Way smuggled one if its operatives into a CPAC panel on “The Left’s Campaign to Reshape the Judiciary,” where I spoke last weekend. After the usual, unsubstantiated gibberish about how democratic judicial elections put our courts up “for sale to the highest bidder,” the group assures its readers that “merit” selection is just an innocent, “nonpartisan alternative” – rather than a power grab by trial lawyers and other special interests.
Unmentioned, of course, is the $2.1 million the People for the American Way Foundation has collected as part of George Soros’ $45 million (and counting) campaign to shape the judiciary to his own ideological liking.
How “Merit” Selection in Tennessee Infects the AG Office
February 15, 2011
Tennessee’s “merit” selection plan isn’t just politicizing the state’s courts and putting trial lawyers in charge of picking judges, it’s also infecting the selection of one of the most important offices in the state – the Attorney General. Unlike every other state in the nation, Tennessee allows the Supreme Court to choose the Attorney General. Recent history strongly suggests that the judges chosen by the trial bar and other legal special interest groups are bringing the same political biases to the selection of the AG.
According to research by Nashville attorney J. Ammon Smartt, since “merit” selection was adopted 40 years ago, “all of Tennessee’s attorneys general who served for any significant period of time were affiliated with the Democratic Party.” How’s that for a coincidence?
Over that same period of time, Smartt reports, Republicans won five of the 10 gubernatorial races and 10 out of 15 U.S. Senate races. Smartt writes that “it seems odd that a ‘merit-based’ process would lead to single-party dominance of such an important office …”
Actually it’s not odd at all – once you understand that, whatever its original intent, “merit” selection has been hijacked by the Left so they can impose their own ideological preferences on state courts.
Smartt raises the obvious question about the “significant lack of democratic accountability” for Tennessee’s AG. But to “merit” selection supporters, the logic is obvious. If “experts” can do a better job picking judges than the people, surely the judges chosen by those “experts” have a better idea than ordinary citizens what qualities are necessary in an AG. But why stop there? Why not empanel a dozen political science professors to choose the Governor? Or create a commission of teachers to choose School Boards? Once you accept the idea that “experts” are better qualified than the people to decide who will rule, there’s no point in stopping until you get rid of that tiresome notion of democratic consent altogether.
Will “Merit” Selection Become an Issue in the Presidential Primary?
February 9, 2011
Carrie Severino over at NRO’s Bench Memos has an interesting post examining the support of “merit” selection by one highly-regarded governor who also happens to be a potential Republican presidential candidate: Indiana Governor Mitch Daniels. Severino correctly notes that “merit” selection was a Progressive Era scheme to put legal “experts” in charge of judicial selection, rather than the people or their elected representatives. Whether you view the birth of “merit” selection as noble or arrogant, there is little dispute that it has become “a mechanism by which trial lawyers and left-leaning special interests can capture the state’s judicial branch.”
As Severino points out, this is how Iowans got saddled with a Supreme Court willing to blithely overrule the legislature’s traditional marriage statue. It’s also how Gov. Daniels wound up appointing the former chief defense counsel for the terrorists held at Guantanamo Bay as the newest member of the Indiana Supreme Court.
If Gov. Daniels felt his hands were tied, he need not look far for blame. When a bill to toss out “merit” selection was approved by the Indiana House 88-3 and by the Senate 35-15, Gov. Daniels vetoed it.
Hate Your Boss? The Obama Administration’s got a Trial Lawyer for You!
February 7, 2011
Under a new “alliance” between the Obama Department of Labor and the trial bar, anyone who complains to the government about their bosses will be patched through to the American Bar Association so they can get a contingency fee lawyer to take their case. Fox Business News has the full story. (Hat tip to Ed Murnane’s Illinois Civil Justice League).
The ABA calls the move “unprecedented” – which it is, but not in the way the lawyers mean. Getting more fee-grubbing lawyers in between employees and employers will doubtless spark more lawsuits. More lawsuits against small businesses means fewer jobs.
Vice President Joe Biden hailed this litigation stimulus plan because “most all” of the fees” will be “contingency on the back end.” Biden’s son Beau was a heavy-hitting trial lawyer before he traded in his famous name to become Delaware’s Attorney General.
It’s a pretty good bet that the Obama re-election campaign will get cut in on any additional contingency fees generated by this cozy arrangement. During the last election cycle, lawyers funneled more than $90 million (thanks Open Secrets) into campaign coffers – the vast majority to Obama.
Unprecedented indeed.