“Merit” Selection Challenged in Tennessee
March 31, 2011
Legislation to junk Tennessee’s troubled experiment with “merit” selection and return to democratic judicial elections – as specified in the state’s Constitution – took a step forward this week when Senate Speaker Ron Ramsey cast the tie-breaking vote to advance the bill out of the Senate Judiciary Committee. The move would END the reign of legal special interest groups in picking judges, which has shifted Tennessee’s courts in a sharply ideological direction.
As Vanderbilt University Law Professor Brian Fitzpatrick has documented, between 1995 and 2008, the lawyer-dominated selection commission nominated twice as many judges more affiliated with the Democratic Party (67%) than with the Republican Party (33%). The bill must still clear the Senate Finance Committee before a full floor vote.
Let’s hope the politicians side with the voters and let the people decide, instead of the club house gang.
A Smear Campaign in Wisconsin
March 31, 2011
Robert Costa at NRO has a good piece on the stakes in the April 5 Wisconsin Supreme Court race, which will likely decide the fate of Governor Scott Walker’s bill to curtail the power of government unions, whose gold-plated pension and benefits contracts threaten to bankrupt the state. Legal challenges to the bill raced through Wisconsin’s lower courts and now rest with the Supreme Court. Conservatives currently hold a 4-3 majority, but special interest groups are pouring millions into a smear campaign to unseat conservative Justice David Prosser. Even the Gavel Grabbers over at the George Soros-funded Justice at Stake took note of a particularly outrageous ad sliming Justice Prosser, but mostly in a “he’s getting what he deserves” vein. Outside groups that want to defend the rule of law in Wisconsin (rather than the rule of trial lawyers) need to step up to the plate and defend Justice Prosser.
“Merit” Selection and the Imperial Judiciary
March 31, 2011
One serious byproduct of a system as anti-democratic and unaccountable as “merit” selection is the tendency toward an Imperial Judiciary. When judicial selection becomes a clubby, insiders game that stiff-arms voters, judges no longer feel they owe their offices to the good opinions of the people they serve and they too often start imposing their ideological views with little regard for state Constitutions or elected legislatures. A case in point is Arizona, where Arizona Republic columnist Robert Robb points out:
“In the 1990s and the early 2000s, however, there was a serious problem with an imperial state Supreme Court. During that period, justices decided that the state’s Constitution no longer would accept the system of funding school construction that had lived comfortably alongside it since statehood and that is somehow required the public funding of some abortions.
“They started tossing some propositions off the ballot. The only common theme among those that got tossed was that they promoted conservative causes.
“The justices even appointed themselves editors in chief of the ballot-publicity pamphlet, in one case censoring a warning from the legislative budget staff that expanding the Medicaid population might end up costing the state general fund big bucks. Which, of course, it did.”
While Robb suggests the current court has been more circumspect, he agrees that Arizona’s “merit” selection system requires “a more robust system of checks and balances.” One reform making the rounds is a plan that to strip the State Bar of Arizona of its role in nominating members of the “merit” selection commission, which recently passed the state Senate. Columnist Robb suggests going further by adopting a modified federal system. This would at least give the power over judicial selection to an elected governor, rather than an unelected, unaccountable commission.
Robb writes that the “Buckley conservative in me says that better, more-fundamental reform is possible.” But he calls judicial elections “anathema to those who understand the … fragility of the rule of law.” Perhaps he’s forgetting William F. Buckley’s famous quip that he’d rather entrust the government of the United States to the first 400 people listed in the Boston phone book than the Harvard faculty. Buckley was making the point that he’d rather rely on the good judgment and common sense of ordinary citizens, rather than the rarified opinions of “experts” when it comes to running the country. Good insight then – and good advice for reforming Arizona’s judicial selection system today
Wisconsin Court Election Heats Up
March 25, 2011
The professional Left is pouring millions into a campaign to slime Wisconsin Supreme Court Justice David Prosser, who is up for re-election on April 5. A Wall Street Journal editorial reports that a liberal outfit called the Greater Wisconsin Committee is dumping $3 million into the race to unseat Justice Prosser and the group has already launched attack ads and a new website.
Defeating Justice Prosser would give the Left a 4-3 majority on the Wisconsin Supreme Court – enough to undo Governor Scott Walker’s recent union reforms and major tort reform legislation signed earlier this year. The last time liberal activists seized control of the Court, they struck down medical liability reform and invented new avenues for trial lawyers to sue Wisconsin businesses – until voters revolted and sent liberal Justice Louis Butler packing.
One interesting sidebar in this race is the utter failure of public financing to curtail “politics” in state Supreme Court races. Public financing is one of the schemes being pushed by the $45 million, George Soros-bankrolled campaign to reduce citizen input in judicial races and keep conservative rule-of-law judges off the bench.
Come to think of it, we haven’t heard much from Sandra Day O’Connor and the Justice at Stake folks about the attacks on Justice Prosser. No gnashing of teeth about dangerous threats to judicial independence – just a couple of milquetoast posts relaying the facts on the ground. I guess special interests aren’t that big a problem – as long as they’re your special interests.
Wisconsin Supreme Court Race Gets “Very Interesting”
March 14, 2011
The professional Left and advocates for budget-busting public sector unions are turning their sights – and most likely millions of dollars – on the upcoming Wisconsin Supreme Court election. But don’t expect any protest from Justice at Stake or the rest of the $45 million (and counting) George Soros-bankrolled campaign to reshape our courts. The current sitting Justice is a conservative, you see, and leftwing outrage over politicizing judicial races doesn’t apply if they sniff a chance to boot out a conservative.
The battle between Wisconsin taxpayers and the state’s public employee union has made the April 5 Supreme Court election between incumbent Republican David Prosser and Democrat JoAnn Kloppenberg “very interesting,” writes David Dayen at uber-liberal Firedoglake. Republicans currently hold a 4-3 balance of power on the Court, but Dayen expects “lots of organizing and millions of dollars” to be “poured into this election…” “If Democrats win,” writes Dayen, “the legality of what took place tonight [the legislature’s passage of a bill reforming public sector unions] may be put in greater question.”
“Merit” Selection on the Hot Seat in Arizona
March 9, 2011
The Arizona Senate moved to make judges more accountable to the people earlier this week when it approved legislation that would modify the lawyer-dominated “merit” selection system it uses for the state’s highest courts and require judges to go before the Senate for confirmation prior to taking a seat on the bench. While certainly not perfect, the proposed reform suggests that even in the home state of the “merit” selection campaign’s Grand Dame, Sandra Day O’Connor, people are increasingly fed up with a system that puts lawyers in charge, sidelines the views of citizens and produces judges that are unaccountable to the people they serve.
Rollback of “Merit” Selection Gathers Momentum
March 8, 2011
In the 1980s, President Reagan shifted America’s post-WW II strategy for combating Communism from “containment” to “roll back” – with brilliant effect. Proponents of judicial accountability are now making the same transition in battling “merit” selection – moving from preventing its spread to actively seeking its removal. As a recent Wall Street Journal editorial makes clear, the effort is garnering national attention.
In Kansas, the state House has adopted legislation to rein in the power of legal elites and their special interest groups like the state Bar when it comes to picking judges. The reform is supported by Kansas Governor Sam Brownback as a means of making the judicial selection process more accountable to citizens, rather than just lawyers – a radical concept in many legal circles.
The Journal points out that “merit” selection is also under fire in Iowa, Missouri and Tennessee, “even as groups like the George Soros-funded Justice at Stake funnel big money” into promoting the lawyer-dominated scheme – a point driven home by a recent American Justice Partnership report, Justice Hijacked. In each state, voters and their elected representatives are beginning to understand that ceding power over picking judges to the “lawyers guild” produces courts that are arrogant, unaccountable and un-democratic.
Getting the Facts Straight in Michigan
March 4, 2011
Justice Hijacked author Colleen Pero (I know, the name sounds familiar) has an article in Dome magazine rebutting recent attacks on the Michigan Supreme Court, which the people returned to conservative control this last election after a disastrous two-year experiment where tort-friendly judges ruled the roost. One of the attacks most frequently trotted out by those who want to indict Michigan’s conservative justices and turn Michigan’s court into a subsidiary of Trial Lawyers, Inc. is a supposed bottom-of-the-barrel ranking for the Michigan Supreme Court by a “University of Chicago Law School” study.
There are a couple problems here. First, the study wasn’t conducted by the University of Chicago Law School. Second, it was never published by the University of Chicago Law Review. Third, 76 percent of the opinions examined in the study were decided before the so-called “Engler four” – conservative justices appointed by former Michigan Governor John Engler – were appointed to the court.
Following the 2008 election, soon-to-be Chief Justice Marilyn Kelly promised to “undo a great deal of damage that the Republican-dominated court has done.” It only took Michigan voters one election to undo the damage of the Kelly Court by consigning her once again to the minority.
The professional Left hates the conservative, rule-of-law judges that voters keep electing and will do anything to keep them off the bench or marginalize them once they arrive. In Michigan, that means misrepresenting supposedly “scholarly” studies; sliming sitting justices with attack ads; trying to hijack the Michigan Constitution in what papers called a blatant “power grab” for the Court; promoting “merit” selection to eliminate voter input over judicial selection; and pushing recusal rules aimed solely at gagging conservative judges.
Boot the Lawyers off “Merit” Committees!
March 2, 2011
Vanderbilt Law Professor Brian Fitzpatrick, who has done so much to document the abuses (especially here and here) of “merit” selection, brilliantly called the bluff of the entire “merit” selection gang at a recent forum in Iowa. According to media reports, Fitzpatrick politely suggested that lawyers shouldn’t serve on judicial nominating commission or if they do, they shouldn’t be elected by the state bar. If “merit” selection is really just about taking politics out of judicial selection and not an insider’s campaign to turn choosing judges into a rigged game controlled by legal elites, then lawyers deserve no special representation on “merit” panels, right?
Given the reaction in the room, you would have thought Fitzpatrick called for repealing the First Amendment. The lawyers were aghast! Iowa “merit” commission member and legal bigwig Guy Cook argued that attorneys deserve their place of privilege because “lawyers do have a common goal of ensuring judges are selected who are qualified, with highest integrity and greatest temperament.” Excuse me, but don’t teachers, doctors, police officers and plumbers have exactly the same goal?
Fitzpatrick has zeroed in on one of the fatal flaws of “merit” selection and a primary reason why so many voters in so many states are pushing back against it. How can a system that puts a single special interest group in charge of judicial selection plausibly claim to remove politics from the process?
In American democracy, there are no privileged classes and no person’s vote should be worth more than any other. Lawyers enjoy no constitutional right to have the controlling say when it comes to selecting the judges who serve our people.