What is Abercrombie Hiding? Newspaper Files Lawsuit, Attempts to Lift Curtain on Hawaii’s “Merit” Process
August 25, 2011
The Honolulu Star-Advertiser has filed suit against Gov. Neil Abercrombie regarding his recent choice for the state’s supreme court.
Hawaii uses a “merit” process to fill vacancies on the court. When a vacancy opens up, a judicial selection commission comprised of legal elites meets behind closed doors and secretly goes over applications it receives from potential nominees to the court. The panel sends four to six approved names to the governor who then must select one to take the seat on the bench. Abercrombie named Sabrina McKenna to the Hawaii Supreme Court earlier this year.
Abercrombie’s predecessors made a symbolic nod to transparency and at least released the list of names of the people they considered when making their choice. The Star-Advertiser is asking Abercrombie to do the same — citing a law that mandates government records be open to the public — and he is refusing, lamely arguing that releasing the names would have a “chilling effect” on future applicants:
“The governor firmly believes that public disclosure is detrimental to attracting potential judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of these applicants.”
What’s truly chilling is Abercrombie’s blatant disregard for transparency in the judicial selection process and public disclosure. It’s also highly ironic.
Proponents of “merit” selection have long argued that democratic judicial elections needed to be stopped because judicial campaigns tainted the courtroom with the “appearance” of bias. Former U.S. Supreme Court Justice Sandra Day O’Connor, for example, has famously stated that “the question is one of perceptions,” as she put it during an interview with the ABA Journal. She went on to say:
“What the people need and want at the end of the day is a fair and impartial judiciary, one that’s qualified, fair and impartial. It is much more difficult to achieve that by using popular campaign-funded elections.”
Well, turnabout is fair play. Abercrombie’s insistence on remaining secretive about his deliberations and the candidates he considered for the bench raise questions of their own. What is he hiding? Who was on the list he doesn’t want anyone to see?
For all of the criticisms opponents make concerning democratic judicial elections, it is inarguable that the process is transparent and open to the public. The candidates debate and campaign in front of the voters, their records are publicly vetted and the people are free to choose whom they believe is best suited for the bench.
This is a far cry from Hawaii’s “star chamber” which not only shuts the people out of the process, the governor himself thumbs his nose at them.
Shame on him.
Wisconsin & Recusal: If First You Don’t Succeed…Try Plan B
August 19, 2011
Having failed in their efforts to keep conservative jurist David Prosser from serving another term on the Wisconsin Supreme Court, the “merit” selection crew is turning to Plan B: get him kicked off important cases.
Following a flurry of communiqués this week from the “merit” machine – led by Gavel Grab and seconded by JudgesOnMerit – the Milwaukee Journal Sentinel took its cue and weighed in with an editorial yesterday that argues Justice Prosser should recuse himself from a major First Amendment case due to be heard early next month.
At issue is the fact that during his election recount, Justice Prosser hired the law firm of one of the attorneys involved in the Supreme Court case. Of course, Prosser was forced to hire a legal team only because his opponent demanded the recount – at significant expense to Wisconsin taxpayers – despite the fact that Prosser had clearly won a close election.
While these recusal arguments are cloaked in the guise of fairness and accountability, it’s all a sham. Making high-minded demands that conservative jurists should be disqualified from critical cases is a tactic taken straight out of the “merit” selection advocacy playbook:
- The first step is to try to keep conservative judges off the courts – but Wisconsin voters chose to keep Prosser on the bench.
- If voters don’t cooperate, time for the next step: keep ordinary voters out of the process of judicial selection altogether and hand these decisions over to “merit” boards stacked with legal elites. George Soros-backed Justice at Stake and others have been pushing this rock up the hill in Wisconsin for years now – to no avail.
- Not to worry –if any of these steps fail or if any conservative judge happens to slip by, gag that judge with phony recusal demands.
- Every step along the way the goal is the same: impose the Left’s agenda on unwilling voters.
While they tut-tut and harrumph, muttering “fairness!” “accountability!” – don’t believe the hype. The “merit” crowd’s aim is as obvious as it is simple: tip the balance of the court in their favor. By booting Prosser off this case, the conservative majority would be wiped out and revert to 3-3.
As I’ve argued for some time now, recusal standards have become a back door way for liberals to marginalize conservative judges in important cases and shape the court to their own ideological ends.
The recusal issue for state supreme courts has become a new battleground in recent years – particularly as legal special interests have failed to get their candidates on the bench. Bert Brandenberg, head of Justice at Stake, has made “merit” advocates’ ultimate goal crystal clear. He called recusal “a battle for the soul of the judiciary 20-30 years from now.”
Prosser has no plans to step down from this case. More power to him. If Prosser does not act impartially and transparently, Wisconsin’s voters can get rid of him in the next election. But ignoring the voters’ will and forcing Prosser off the case does nothing to advance fair, accountable courts. It only serves to undermine democracy.
A Strong Defense of Judicial Elections
August 15, 2011
In an inteview with the Grand Rapids Press (MI) Former Michigan Chief Justice Clifford Taylor presents a principled defense for democratic judicial elections and (again) exposes the flaws of the so-called “merit” selection system.
What makes Taylor’s defense of judicial elections all the more compelling is that he himself lost a tough campaign for re-election following a series of attack ads. When asked about his support for judicial elections given his own recent experience with them Taylor says:
“Because you have one bad outcome doesn’t mean the whole system is awful. The fact that there can be misfires in a democratic system is no different than any other system. As I have characterized it, elections may have some warts but they are beauty queens compared to merit selection.”
Read the article summarizing the interview here and watch short video interview with Taylor here.
Joining Taylor at the Press was Colleen Pero, author of Justice Hijacked (and, full disclosure, my wife). Pero and Taylor are keeping a close eye on Michigan’s Judicial Task Force which is evaluating judicial selection in Michigan. The Task Force touts former U.S. Supreme Court Justice Sandra Day O’Connor as an honorary co-chair.
Of course, O’Connor has been waging a national campaign against democratic state judicial elections since she stepped down from the Supreme Court. While the Judicial Task Force claims to have “no predetermined position” on how to change Michigan’s system for picking judges, let’s just say I won’t be surprised if the Task Force somehow concludes that the best way to serve Michigan voters is to cut them out of the process for picking judges and replace them with a “merit” panel.
Countdown Underway for End to Tennessee “Merit” Panel
August 15, 2011
Tennessee’s Judicial Nominating Commission (JNC) will cease to exist less than a year from now - June 30, 2012 - unless the state legislature votes to give the “merit” panel a new lease on life. (A recent article from the Knoxville News Sentinel has the details.)
The last time the JNC was about to “sunset” - 2009 - legislators nearly let the panel expire because it had become so deeply partisan. It looks like it might be just as difficult to secure renewal this time around.
The first step to renewing the panel is getting the state House and Senate Government Operations Committees to support the extension and move legislation forward. The bad news for “merit” proponents: key members of the Senate committee are strongly opposed to the JNC and are threatening to block its renewal.
Sen. Mike Bell, Vice Chairman of the Goverment Operations Committee, has vowed “to do all that I can to see that the commission has problems being renewed.”
Sen. Stacey Campfield is also a key member of the committee. He’s long been very vocal about his opposition to the JNC and he first questioned the constitutionality of “merit” selection in Tennessee three years ago, writing:
“…I doubt that that system ["merit" selection] is anything close to what our state’s founding fathers had in mind when they said, ‘The judges of the Supreme Court shall be elected by the qualified voters of the state.’”
The constitutional questions surrounding the JNC continue to linger and legislation has been introduced which would attempt to clarify the legality of the “merit” panel by amending the state Constitution. Tennessee voters would have to approve of such an amendment — no small matter. When given the choice, not only have voters across the country consistently rejected the “merit” selection system, voters in Tennessee have, too.
But, while the future may appear uncertain for the Tennessee JNC, one thing is guaranteed - the George Soros “merit” machine will be cranked into gear and will again be spending its millions to turn back the democratic tide in the Volunteer state.
Getting the Facts Straight about “Merit” Selection in Wisconsin
August 3, 2011
The Wisconsin State Journal recently posted a little Q&A in an attempt to persuade voters to hand over their constitutional right to select judges to a gang of unelected, unaccountable elites. It’s going to be an uphill slog. Even a slanted, biased poll released by the Soros Center for an Unaccountable Judiciary (aka Justice at Stake) found that Wisconsinites oppose “merit” selection by a staggering 59 percent to 23 percent. But just for fun, let’s examine some of the “answers” that are supposed to sway ordinary citizens.
First, the State Journal argues that judges should not be chosen democratically because, while “we elect lawmakers and governors to represent us and fight for our causes” judges “are not supposed to represent constituencies or advocate on issues.” It’s tempting to dismiss this dribble as the flimsiest strawman. Read more