Another Lame Excuse for “Merit” Selection
June 29, 2011
The Wisconsin State Journal is up in arms over an alleged altercation between state Supreme Court Justices Ann Walsh Bradley and David Prosser. Justice Bradley accuses Justice Prosser to putting “his hands around my neck in anger in a chokehold” while Justice Prosser accuses Justice Bradley of charging toward him. Lord knows how this he said/she said will sort itself out, but the Journal already has an explanation: It’s all because of democracy! – specifically democratic judicial elections!
The blowup allegedly occurred over a dispute between Bradley and Prosser over a 4-3 high court ruling affirming Governor Scott Walker’s controversial move to reform the public employee unions that are bankrupting the state. Such a disagreement would have never happened under “merit” selection, the Journal assures us. Why? Because “a citizen [correction: lawyer] panel that’s insulated from politics would carefully draft a list of experienced, independent and impartial judges …” – you know, the kind of judges who won’t physically attack each other.
Come to think of it, maybe abandoning democracy for “merit” selection isn’t such a bad idea after all. Why not have a panel of experts pick legislators as well? Maybe legislators picked by “merit” rather than by politics wouldn’t abandon their seats and flee the state for six weeks because they were about to lose a vote.
As former Michigan Chief Justice Clifford Taylor has pointed out, what’s really at stake here [not in the altercation, but in the 4-3 vote] is a deep, divisive dispute over the role judges are supposed to play in society. Some believe judges should only interpret the law, while others believe judges should apply their ideological preferences to secure outcome they deem “fair.” “Merit” selection promises to paper over this divide by rigging the system to select primarily liberal judges. But this is a debate that must ultimately decided by the people – and the best way to do so is through open, transparent, accountable elections.
“Merit” Selection Proponents Don’t Let Facts Get in the Way
June 27, 2011
Judge Jack Zouhary offers a lame rebuttal to a recent article by University of Pittsburgh Professor Chris Bonneau, who marshaled real empirical evidence, including analysis of court opinion and campaign spending patterns, to demonstrate that democratic judicial elections are not a threat to democracy. Judge Zouhary responds with … a couple public opinion polls dating back to 2001.
As an undoubtedly distinguished jurist, Judge Zouhary must be unaware that many of the polls he cites were paid for by George Soros’ $45 million campaign to fundamentally change our courts and promote “merit” selection. He also must have missed a recent Rasmussen poll that found that 65 percent of Americans think judges should be elected. Or a 2008 American Justice Partnership poll which found that only 21 percent of Americans favored “merit” selection for state judges, compared to 75 percent who favored elections. (Full disclosure: I run the AJP.)
Yet in Judge Zouhary’s mind, the evidence doesn’t really matter. As he candidly put it, “Public perception that justice is ‘for sale’ is damaging to the courts – whatever the reality.” (my emphasis) In other words, the facts are meaningless – it’s only the perception that counts.
The judge’s little obiter dicta gives away the entire “merit” selection strategy. A lavishly-funded group like Justice at Stake swoops into a state and makes a lot of noise about the “danger” of campaign money judicial elections. They roll in an eminence grise like Sandra Day O’Connor to decry the “threat” to judicial independence. They visit local editorial boards, which dutifully parrot the party line. Then, after this carefully orchestrated campaign, they take a poll that shows – low and behold – people are suddenly, magically concerned about the judiciary. The only answer? Take away the peoples’ right to vote and let legal elites pick judges!
It’s all very neat and tidy: spend millions to create a perception problem and then offer up a “solution” that just coincidentally pushes courts in your preferred ideological direction. The problem is, voters don’t really buy the argument that they’re the problem. That’s why they keep pushing back against “merit” selection in states like Tennessee, Missouri and Arizona, defeating “merit” selection ballot initiatives in states like Nevada, and demanding that judges be held accountable in states like Iowa.
It’s the People’s Fault!
June 23, 2011
The American Constitution Society held a little gripe-fest last week to discuss the problems with state courts. The verdict: It’s the peoples’ fault! Specifically those pesky voters who keep meddling in the judicial selection process. “The system has changed,” lamented former Indiana Supreme Court Justice Myra C. Selby, “It starts not with judges or lawyers, but with the average Joe and his understanding of what the judiciary is all about.”
It’s not too hard to read between the lines here. Judicial selection was rolling along great as long as it was a clubby, insiders’ game for legal elites. But then all those average Joes crashed the party! Imagine that! Voters actually believe their public servants should be held accountable. What an outrage.
The American Constitution Society is paid by George Soros’ Justice at Stake organization ($5.85 million between 2002 and 2008), so it’s not surprising to hear them parroting the meme about politics (i.e. the people) interfering with the judiciary. Fortunately, former West Virginia Chief Justice Richard Neely was there to bring a little democratic common sense to the proceedings. Said Neely, “The problem I see is that judges aren’t listening to the arguments of the people with whose values they disagree. Part of it is the failure of the courts to take into consideration that sometimes they are deciding cases that are highly debatable and they are making law.”
In other words, judges can’t act like legislators one minute, then retreat behind their black robes and claim they’re above politics the next. When judges arrogate to themselves the power to make law, rather than simply interpret the law, the average Joes need to step in and hold them accountable.
Taylor Demolishes O’Connor at “Merit” Selection Event
June 16, 2011
While Sandra Day O’Connor’s “merit” selection powwow at Wayne State University earlier this week was heavily stacked with anti-election activists, former Michigan Chief Justice Clifford Taylor managed to crash the party, delivering a thoughtful, measured speech that ruthlessly demolished the arguments behind “merit selection.” It’s important reading for supporters of democracy in judicial selection, and I’ll try to get a link to the full speech, but here are some highlights:
- All Judicial Selection Methods are Political: “Any state appellate court judicial selection method – gubernatorial appointment with or without legislative confirmation, partisan or non-partisan election or the currently hyped and cleverly named, merit selection – can and does create the potential for the selectee to feel, or be perceived to feel, beholden to the selector.” Read more
O’Connor Brings “Merit” Selection Battle to Michigan
June 15, 2011
Lots of action in Michigan this week as former U.S. Supreme Court Justice Sandra Day O’Connor made her standard pitch for “merit” selection to a meeting of the state’s Judicial Selection Task Force. My take on the event can be found in this Lansing State Journal oped. The State Bar of Michigan has a write-up of speeches by both O’Connor and former Michigan Supreme Court Justice Clifford Taylor, who argued that “merit” selection lacks transparency and tilts courts to the left. Meanwhile, the Mackinac Center for Public Policy posted a piece on Capitol Confidential about the special interest money behind the “merit” selection campaign, including a reference to a study by the American Justice Partnership, which I lead.
Once you get past the boilerplate, O’Connor’s argument in Michigan basically boils down to this: Judges are different. Unlike governors and legislators, “the judicial branch must administer justice impartially, deciding cases solely on the basis of the facts and the applicable law…”
Of course, everyone agrees that judges decide cases based on the law, but if there’s any evidence elected judges are less capable of adhering to that standard than judges chosen by commissions, O’Connor doesn’t offer it. However, University of Pittsburgh Professor Chris Bonneau does offer evidence, pointing out “there is no difference … in the quality of judges who emerge from elections as opposed to appointments” and “there is no systematic evidence to date that judges’ votes are influenced by campaign contributions.”
O’Connor also tries to drag the U.S. Constitution onto her side, but as I’ve pointed out repeatedly, both James Madison and Alexander Hamilton make clear in Federalist 39 and Federalist 76 that the Framers would have been aghast at the prospect of judges being chosen under an unaccountable, non-transparent system like “merit” selection.
At the deepest level, judges really aren’t different. They are public servants and are expected to act in the public interest. Like governors and legislators, they are sworn to uphold their state Constitutions. But someone has to determine whether they are carrying out their duties. Under judicial elections, that someone is the people. Under “merit” selection, judges are accountable to no one but themselves – which is the definition of tyranny, not democracy.
Texas Leads the Way in Tort Reform
June 3, 2011
Earlier this week, Texas Governor Rick Perry signed “loser pays” legislation that would require plaintiffs who file groundless lawsuits to pay the legal costs for the defendants. Stephen DeMaura of Americans for Job Security has a nice write-up over at The Corner.
This latest round of tort reform builds on Texas’ other efforts to take back control of the state’s courts from the trial bar. Over the past decade, Perry has signed medical liability reform, class action reform and product liability reform – all major reasons why Chief Executive magazine now ranks Texas the #1 business climate in the nation.
O’Connor to Preside over Kangaroo Court in Michigan
June 2, 2011
Former U.S. Supreme Court Justice and current “merit” selection uber-lobbyist Sandra Day O’Connor is headed to Michigan, where she’ll preside over a Kangaroo Court known as the Judicial Selection Task Force. The task force is supposed to be objectively “studying” ways to improve judicial selection in Michigan, but the guest list is anything but nonpartisan.
The forum – to be held at Wayne State University Law School on June 14th – is heavily stacked with political hacks like former Michigan Democratic Party chair Mark Brewer and groups like the National Center for State Courts, which has raked in over $1.8 million over the last decade as a charter member of the George Soros-bankrolled campaign to end democratic judicial elections. With her heavy politicking on behalf of “merit” selection, Justice O’Connor herself gave up any pretensions to impartiality. Last fall, O’Connor was embarrassed after her voice was used to make robo-calls to Nevada voters in an unsuccessful attempt to impose “merit” selection in that state.
Yes, former Michigan Supreme Court Chief Justice Clifford Taylor has been invited as a token representative in support of democratic judicial elections. However, the Judicial Selection Task Force is doing everything possible to muzzle this point of view. Insiders tell me that O’Connor and task force director Justice Marilyn Kelly are refusing to allow a recording of the event, and public access is strictly limited. Sounds a lot like “merit” selection itself – where legal elites meet behind closed doors to pick judges and the public is shut out. So much for the free and objective exchange of ideas.
Speaking Up for Democratic Judicial Elections
June 1, 2011
“Without a mechanism for effectively holding judges accountable, judges are free to ‘go rogue’ and make decisions based solely on their political views,” argues University of Pittsburgh Political Science Professor Chris Bonneau in a powerful piece in the Washington Post. What’s the best way to ensure judges are accountable to the people they serve? While conceding that “no method is perfect,” Professor Bonneau rightly points out that democratic elections “are at least transparent processes open to the public” – unlike “merit” selection.
After surveying the empirical evidence, Professor Bonneau dispatches the foundational myths of the “merit” selection campaign. First, “there is no evidence that elections cause voters to view judicial institutions as less legitimate.” Second, “there is no difference, other things being equal, in the quality of judges who emerge from elections as opposed to appointments.” Third, “campaign spending makes elections more competitive” and “provid[es] voters with a meaningful choice.” Fourth, “there is no proof that elections judges are for sale” and “no systematic evidence to date that judges’ votes are influenced by campaign contributions.”
In response, Bert Brandenburg – head of the George Soros Center for Undemocratic Courts (aka Justice at Stake) – writes that Professor Bonneau skipped over “important data that justice could be for sale.” Specifically, Brandenburg cites the fact that spending on judicial elections is “shattering records” and that “much of this money comes from lawyers and interested groups who appear before these candidates in court.”
These observations raise a couple interesting questions. First, is Brandenburg completely unaware that spending levels in every election have been “shattering records”? In the 2008 presidential election, the candidates spent over $1.7 billion – as much all the candidates spent in the six presidential elections between 1976 and 1996, with enough left over to win a couple House seats. (Thanks, as always to OpenSecrets.) Rising spending on judicial elections is not an alarming anomaly, but simply part of a broader trend. Or perhaps Brandenburg will soon propose choosing presidents by “merit” panels rather than through democratic elections.
Second, if Brandenburg is worried that campaign contributions by “lawyers and interested groups” give these folks outsized influence over judges, his proposed solution will only make the problem worse. Under “merit” selection, lawyers won’t just have a front-row seat in the judicial selection game, they’ll be inside the dugout deciding who plays and stands behind the plate calling balls and strikes. Since legal elites and legal special interests invariably control “merit” selection panels, Brandenburg’s answer to lawyers having too much influence is to give them more influence.
Voters instinctively understand that the arguments for “merit” selection are incoherent and undemocratic – which is why they’ve been largely immune from politicking by Sandra Day O’Connor and other “merit” selection lobbyists. Professor Bonneau is right: Judicial elections may not be perfect, but they are the voters’ best defense against an arrogant, imperial judiciary and the best assurance of an open, transparent judicial selection process.