At it Again in Pennsylvania
April 28, 2011
It takes a special kind of courage to speak truth to power. Like Lynn Marks of Pennsylvanians for Modern Courts showed the other day when she told a “special committee” of the Pennsylvania Bar Association that lawyers such as themselves deserve a privileged place when it comes to choosing judges because ordinary voters too often make an “uninformed decision.” OK, so maybe it wasn’t such a profile in courage after all.
Marks’ appearance was part of a well-funded campaign by her group aimed at stripping Pennsylvanians of their right to choose judges – a right enshrined in the state constitution – and then turning the job over to a commission comprised of legal heavyweights with a few laypersons thrown in for window dressing. They’ve been pushing this line for about 20 years now, with little success. Those “uninformed” voters keep getting in the way.
“Recount Unnecessary” in Wisconsin
April 25, 2011
Given the unlikelihood of overturning Wisconsin State Supreme Court Justice David Prosser’s 7,300+ vote victory margin, the Milwaukee Journal Sentinel concludes a recount is “unnecessary.” As a recent editorial put it:
“Earlier, the GAB [Government Accountability Board] said a statewide recount in the Supreme Court race might cost as much as $1 million. Given that the state is already scrambling in its current budget to make ends meet and that the next budget won’t be any prettier, this is an expense the state can ill afford.”
Of course, challenger JoAnne Kloppenburg has every right to ask for a recount. But given that the largest margin overcome by a recount in Wisconsin is about 500 votes, what purpose is served by asking taxpayers to pony up $1 million, other than placating the liberal special interest groups that financed the smear campaign against Prosser?
Sad Race-Baiting in Florida
April 25, 2011
Florida trial lawyer Chuck Hobbs has a piece in the Tallahassee Democrat (subscription required) attacking a measure passed by the Florida House to enhance public accountability in the Florida judiciary by requiring state Supreme Court nominees to be confirmed by the Senate. Hobbs claims that shifting power from the unelected Judicial Nominating Commission to the elected Governor and elected Senators will have a “chilling effect … on the number of minorities and women appointed to the state’s highest court.”
Such blatant race-baiting would be scurrilous under ordinary circumstances, but since it’s so easily disproved in Hobbs’ case it’s merely sad or even pathetic. Hobbs writes that the reforms would leave judicial “nominations and appointments almost entirely in the hands of the governor” – with potentially “malignant” consequences for women and minorities. But just four paragraphs later, Hobbs unveils a laundry list of distinguished women and minority jurists elevated to the bench by governors from both parties in recent decades. How exactly does this prove his point that giving governors more power over judicial appointments would hurt women and minorities?
Even worse than Hobbs’ logic is his denial (or lack of awareness?) of recent history. Back when he was a Republican, former Florida Governor Charlie Crist consistently battled with the state judicial nominating commissions for refusing to send him qualified minority candidates for the bench. On one occasion, Crist sent back the commission’s initial list, noting that at least three well-qualified African Americans had applied. As I pointed out at the time, the commission’s decision to bypass well-qualified minorities led the Florida NAACP to charge that “the specter of discrimination has been raised” by the commission’s actions. Moreover, the NAACP criticized the closed-door nature of the commission’s meetings because it makes it impossible “to investigate misconduct or discrimination within the nominating process.”
Legislators in other states have also recognized that turning judicial selection into a clubby, insider’s game can damage the prospects for well-qualified minority candidates. In Maryland, the Legislative Black Caucus sunk a proposal by the state’s Attorney General to strip power from voters when it comes to choosing judges and install “merit” selection.
So what’s Hobbs’ real beef? Instead of giving ordinary citizens or their elected representatives more power in the judicial nominating process, he wants “further enhancement of a system in which those with the skills to judge the best-qualified candidates have a greater role” in deciding who sits on the bench. (my emphasis)
Yes, you read that right.
What we have here is a case of plain, old-fashioned bigotry against every Floridian without an “Esquire” after their name. Hobbs believes only lawyers like himself have the “skills” to determine who should sit on the bench, so they should be granted a “greater role” or a place of privilege. In his mind, fewer than 1% of Florida’s citizens have the brains or training to decide who is “best qualified” (90,662 Florida lawyers out of 18,500,000 people). I’ll say this in defense of Chuck Hobbs, though: Unlike most “merit” selection supporters who shy away from publicly stating their belief that the “people are stupid,” at least he has the guts to say it.
Recount in Wisconsin
April 21, 2011
Wisconsin Supreme Court challenger JoAnne Kloppenburg, currently trailing Justice David Prosser by 7,316 votes, is asking for a recount, even though as Daniel Foster points out over at NRO’s The Corner, the largest margin ever overturned in a Wisconsin recount is fewer than 500 votes. The recount will cost taxpayers as much as $500,000 in Milwaukee County alone and could cost upwards of $1 million statewide according to the MacIver Institute.
Elsewhere, the AP reports the uber-liberal Greater Wisconsin Committee spent $1.7 million as part of its smear campaign against Justice Prosser. Fortunately, groups like Wisconsin Manufacturers & Commerce stepped up to match the influx of cash and set the record straight.
“Madigan’s List” or the Politics of “Merit” Selection
April 20, 2011
For anyone who still believes in the tooth fairy or that “merit” selection takes the politics out of judicial selection, this Chicago Tribune report is must reading. Absolutely, positively must reading. Hat tip: Point of Law.
Like other “merit” selection schemes, the process for choosing associate judges in Cook County, IL is supposed to be free of political influence. In theory, associate judges are chosen by “merit” by the county’s 275 circuit judges. In practice, gaining a spot on the bench often requires winning a place on “Madigan’s list” – that’s Illinois Speaker of the House Michael Madigan. Read more
Two Legal Elites Run Up the White Flag on “Merit” Selection
April 18, 2011
Yesterday’s New York Times op-ed page featured a thumb-sucker by a law school dean and a professor arguing that “legal elites must come to terms” with the unpleasant fact that “judicial elections are here to stay.” The piece leads off with what passes for thoughtful analysis on the editorial pages of The Gray Lady these days – the observation that America’s benighted voters “rarely know much, if anything, about the candidates” running for our courts, followed by a little moral preening/boilerplate, “ideally, judges should decide cases based on the law, not to please the voters.” This raised an obvious, but tangential question in my mind: If voters are so dim that they know little “if anything” about judicial candidates, why on earth would any judge feel the need to base any decision on a desire to “please the voters”?
Anyway, the most interesting part of the piece was the dog that didn’t bark. Not once in 800+ words did the authors utter the phrase “merit selection.” In fact, they inform us, while “judges, scholars and advocates” may “find intellectual comfort in seeking to eliminate judicial elections,” they “are indulging a luxury that America’s courts can no longer afford.” Once I got past the putrid smugness, the full weight of this remark hit me. Two charter members of the legal elite believe the whole “merit” selection campaign is lost! They just can’t get it past those pesky, idiot voters! Even “a campaign led by Sandra Day O’Connor” isn’t working!
Read more
Wisconsin Wake-Up Call
April 18, 2011
Good piece by John Fund in today’s Wall Street Journal on the snafu in Wisconsin’s Supreme Court election, where 14,000 votes were mistakenly excluded from the initial count. After the ballots were discovered, the race went from a razor-thin 200-vote margin for challenger JoAnne Kloppenburg to a clear 7,000-vote victory for incumbent David Prosser. Fund makes the case that avoidable errors such as this undermine confidence in the competence and honesty of our elections. It also provides fodder for the “merit” selection cabal in their $45 million campaign to radically change our judiciary and limit citizen participation in judicial selection.
In Wisconsin: Common Sense from Citizens…Hysteria from Elites
April 15, 2011
If you ever needed a reason to restore your faith in the wisdom and good judgment of ordinary citizens, take a look at Wisconsin. In the run-up to Wisconsin’s fiercely fought Supreme Court race, voters calmly evaluated the merits of the two candidates, ferreting out false charges and discounting malicious attack ads run by special interest groups.
And the elites? They became unhinged. Read more
Will Lawsuits be the Next Big U.S. Import?
April 14, 2011
As if we didn’t have enough home-grown lawsuits clogging U.S. courts, the trial bar is hard at work trying to import foreign-based claims. According to U.S. Chamber of Commerce President and CEO Tom Donohue, there has “been a sharp rise over the past 15 years in lawsuits brought against U.S. companies based on alleged personal or environmental injuries that occur overseas,” including cases against Dow Chemical, Shell Oil and Dole Foods. In Nicaragua, writes Donohue, the trial bar:
“lobbied to change Nicaraguan law retroactively to deprive the defendants of due process, fabricated testimony from plaintiffs who never worked at a banana plantation, and conspired with a local judge to rig judgments.”
Even as they work to import overseas lawsuits into the U.S., the trial bar is also actively trying to export America’s broken legal system so they can sue American companies in foreign venues. The sleazy tactics of the trial bar don’t just undermine justice, Donohue rightly points out, “they will destroy jobs, competitiveness, and economic growth.” But as far as Trial Lawyers, Inc. is concerned, that’s a small price to pay for a Powerball-sized contingency fee.
More Ethical Clouds Hanging Over O’Connor
April 11, 2011
The ethical cloud seems to be growing over former U.S. Supreme Court Justice Sandra Day O’Connor, with more questions being raised over whether her partisan political activities are coming into conflict with her decision to continue hearing cases in U.S. appeals courts.
Last election season, an embarrassed O’Connor was forced to apologize after 50,000 midnight robocalls using her voice were made to Nevada voters in an unsuccessful attempt to sway their votes on a ballot initiative to change the state’s judicial selection system. Now, the Associated Press reports, some ethics experts are questioning her decision to host a reception at the high court for a group engaged in a controversy over a proposed mine in Alaska.
Arthur Hellman, an ethics expert at the University of Pittsburgh law school, told the AP he found the reception troubling because “we’re talking about political activity. It’s a lobbying effort and she is lending her considerable prestige to that effort.”
Senior Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia has also criticized O’Connor for her decision to wade into the Nevada political fray: “the issue of whether state court judges should be chosen or ratified by election or solely by appointment is a political issue on which serving federal judges should not publicly advocate, one way or the other.”
O’Connor also appeared at an Iowa conference on judicial elections in the midst of the mostly hotly contested retention elections in that state’s history – which ultimately led to the dismissal by voters of three Iowa state Supreme Court justices. While other federal judges had also been invited to attend, all but O’Connor decided to stay away after receiving “an informal opinion that their presence would violate the judiciary’s ethics code.”
According to the ethics expert Hellman, it’s time for O’Connor to decide whether she “wants to engage in this level of political or politically related activity” – or whether she should stop participating in court cases.
Motion affirmed!