“Merit” Selection Under Fire in New Mexico
December 21, 2011
In a stinging oped, New Mexico legislator Dennis Kintigh calls for a “serious review of how the judiciary and legal profession as a whole is held accountable” under the state’s “merit” selection system. Kintigh cites several recent incidents that “have diminished and tarnished the reputation and standing” of the state judiciary. One judge was removed after “mishandling a courtroom disruption and grossly violating the rights of scores of people;” another “resigned after an egregious drunk driving incident;” and yet another “was found to be cavorting with a prostitute;” and a few years back, “the chief judge in the largest judicial district was caught possessing cocaine.”
The “merit” selection campaign likes to pretend that judges chosen under their preferred system have a monopoly on virtue. The long catalogue of ethical abuses cited by Kintigh suggests that judges – whether chosen under “merit” selection or democratic elections – are simply human, like all other public servants. While judges chosen democratically through elections are readily accountable to the people, judges chosen by “merit” commissions are accountable to no one. And, as Kintigh observes, “history has demonstrated over and over again that power and accountability exclusively held by a small group [like a “merit” selection commission] leads to catastrophe.”
Kintigh recalls the wisdom of James Madison, as I have often done myself, who wrote that “if angels were to govern men, neither external nor internal controls on government would be necessary.” Open, democratic judicial elections provide that “external control” Madison believed was so necessary – “merit” selection leaves us only to hope that all judges will be angels.
A Cry for Judicial Accountability
December 19, 2011
Justice at Stake’s Bert Brandenburg takes GOP presidential candidate Newt Gingrich to task for his attack on federal courts, including a threat to arrest judges in order to compel them to justify controversial rulings. Bombastic? Surely. Over the top? Absolutely – and I have no interest in defending Gingrich’s proposed “solution” to the problem.
But Brandenburg’s main complaint against Gingrich – “Americans want courts that can uphold their rights and not be accountable to politicians” – misses the point. The real problem with activist judges today – and the reason Gingrich’s attack is winning applause among the conservative rank and file – is not that judges aren’t accountable to politicians, but that they increasingly believe they are not accountable whatsoever to the people they serve.
There are ample cases in our history to show that activist judges who consistently trample on the prevailing values of the people often elicit a political reaction by whatever means are available to restore the proper balance between the three branches. Witness the decision by Iowa voters last November to dump three Supreme Court justices for overturning the state’s defense of marriage bill – legislation that was overwhelmingly endorsed by the people and adopted by the democratically-elected legislature. Or the fact that a federal court ruling to ban the words “prayer,” “amen,” “invocation,” or “benediction” from high school graduations has become a hot campaign issue.
The obvious response is that judges must remain independent, without concern about making unpopular decisions. This is true as far as it goes. But independence is not the only virtue our Founders sought for the judiciary – they also believed that judges must be accountable. This is why the lifetime tenure provided to federal judges is balanced by judicial nominations that originate from an elected president and require confirmation by elected Senators. It’s why many states continue to select judges through democratic judicial elections. And it’s why Brandenburg’s efforts to promote “merit” selection – where judges are chosen by an unelected, unaccountable commission that is dominated by special interest groups and meets in secret – can never win much popular support.
“Merit” Selection Crowd OKs Campaigning by Judges
December 15, 2011
The reverberations from the decision by Iowa voters to dump three Supreme Court Justices last November continue to shake the “merit” selection movement. The Iowa City Press-Citizen is out with an editorial endorsing the idea that judges should “set aside their historic reluctance to engage citizens in civil discourse about controversial rulings …” The gavel grabbers over at Justice at Stake don’t seem to object. In other words, the High Priests of the “merit” selection campaign now think it’s just fine for judges to campaign! For re-election! Like ordinary politicians!
The Press-Citizen contends that the “only real problem” with “merit” selection in Iowa “is that it all but ties the hands of judges from defending themselves against any organized efforts to unseat them.” So apparently it’s OK to introduce politics into the judicial system – as long as it means protecting judges chosen in secret by a tribunal of legal special interest groups. University of Iowa Law School Professor Todd Pettys goes even further, suggesting the retention elections be abandoned and that judges only serve a single term. Under this scheme, judges would have no accountability to the people they serve whatsoever.
Think for a minute about the theory of judicial selection “merit” selection system now represents. Judges should be chosen by a small committee dominated by legal special interest groups. These committees must meet in secret, with no public record of their proceedings. Citizens must never vote against judges running for retention – even if those judges flagrantly overstep their authority by enacting social policy that is the proper domain of elected legislatures. And if citizens do vote against judges, “merit” selection proponents will ban retention elections, giving us an Imperial Judiciary, or encourage judges to campaign like politicians, undermining the central promise of the entire “merit” selection movement, which is that it eliminates politics from judicial selection. And they wonder why state after state is pushing back against this incredibly undemocratic system for choosing public servants.
No “Merit” for Virginia
December 13, 2011
Virginia Lt. Gov. Bill Bolling is promoting a proposal to shift control of the judicial selection process from the legislature to a “merit” selection commission and the Daily Press out of Newport News has an editorial in support. Bolling argues that the current system is susceptible to political favoritism, while the editors call for a judiciary that is “independent and impartial.” But “merit” selection won’t end cronyism or produce more impartial judges – in fact, it will make these problems worse.
In neighboring Tennessee, for example, the state’s “merit” commission kept submitting the name of the former head of the Tennessee Democratic Party even after Democratic Governor Phil Bredesen had already rejected the nomination. Over the last several years, the Tennessee legislature has taken steps to reduce the power of special interest groups on the commission, such as the state trial lawyers association, and a new bill has been introduced that would end “merit” selection altogether and replace with the federal model.
In Missouri, the “merit” selection commission has turned the judicial nominating process into a rigged game controlled by the powerful trial bar. In September, the former president of the Missouri Association of Trial Lawyers was nominated to fill a vacancy on the state Supreme Court. No surprise there – considering the “merit” commission includes a former and current member of the Missouri Association of Trial Lawyers Board of Governors, plus the wife of one of the state’s wealth trial lawyers.
In Iowa, voters took the unprecedented step of dumping three “merit” commission-chosen Supreme Court justices in the November retention election after the Court overstepped its authority by overturning the legislature’s ban on gay marriage. As the Wall Street Journal put it at the time, “the three Iowa justices were fired because they put their own political preferences above their commitment to the law.”
Like every other public servant in American democracy, judges must somehow be accountable to the people. Under “merit” selection, judges are accountable to no one. That’s not judicial independence; it’s judicial supremacy.
More Whining about Voters from the “Merit” Selection Crowd
December 10, 2011
Sean MacPhee has a little item over at JudgesOnMerit – another Soros-financed conspirator against democratic judicial elections – complaining about a recent Texas Supreme Court race that he claims, without offering any evidence of course, was decided solely by the candidate’s name: “Names were all the public had available to them in the voting booth; it’s not unreasonable to wonder whether names decided the race.”
But MacPhee doesn’t stop there. He also upbraids voters for “impos[ing]” their own “biases and agendas onto the concept of justice” when they step into the voting booth. Imposing! Of course, under the “merit” selection system MacPhee is pushing, the trial lawyers and other legal elites would never dream of “imposing” their “biases” when they sit down behind closed doors and decide who will sit on the bench. Nope – no agendas there.
Of course, the entire Soros-bankrolled, poll-tested, lawyer-dominated, elite-driven “merit” selection movement is just a giant campaign to “impose” left-wing “biases and agendas” on our courts. The “merit” selection crowd doesn’t like the conservative, rule of law judges chosen by ordinary people … so they’re determined to cut voters out of the selection process. If anyone’s “biases” are going to determine who runs our courts, I’ll take the people over the legal elite any day.
Tennessee Debates Judicial Selection
December 8, 2011
There is growing recognition that Tennessee’s “merit” selection system is broken. While the legislature has taken steps in recent years to make the system more accountable, state Senator Brian Kelsey has introduced a bill that would replace “merit” selection with a model based on the federal system. Tomorrow Sen. Kelsey will square off against Tennessee Bar Association president Danny Van Horn in a debate sponsored by the Federalist Society.
Any reform that takes power away from legal special interest groups like the state Bar and the local trial lawyers association is a step in the right direction. Of course, the most accountable system is the one spelled out in Tennessee’s Constitution – which requires that judges “shall be elected by the qualified voters of the state.” The current “merit” selection system is set to sunset on June 30, 2012 unless it is reauthorized by the legislature.
New Recusal Rules Pushed in Tennessee
December 8, 2011
With “merit” selection under fire in Tennessee, the Soros-bankrolled campaign is pushing new recusal rules that would give trial lawyers more power to challenge sitting judges and dictate who hears their cases. Among the groups pushing for these new rules are – surprise, surprise – the Brennan Center and Justice at Stake, each of which receives millions from Soros’ Open Society octopus to push courts sharply to the left.