Nevada Bar on Retention Elections
July 14, 2010
Our gavel grabbing friends over at the George Soros Center for an Undemocratic Judiciary – aka Justice at Stake – have a little item from the new president of the Nevada Bar expressing support for scrapping democratic judicial elections in favor of “merit” selection. Why? Because “retention elections would make judges much more accountable to voters” than contested elections.
Come again?
Of the 6,309 judges who ran in retention elections between 1964 and 2006, more than 99% were reelected, according to an article in Judicature by Professor Larry Aspin of Bradley University. Vanderbilt Law Profession Brian Fitzpatrick found that 145 out of 146 Tennessee judges were retained in a recent study he published on that state’s experiment with “merit” selection.
I’m willing to be disproven on this, but are Nevada judges who run in contested elections really returned to office more than 99% of the time, even taking into account the fact that many run unopposed?
No “Merit” for Texas
June 1, 2010
The Houston Chronicle has an editorial advocating an end to democratic judicial elections in Texas. Echoing former U.S. Supreme Court Justice Sandra Day O’Connor, the Chronicle calls for establishing a “nonpartisan commission” that would nominate acceptable candidates, followed by retention elections to decide whether judges should stay on the bench.
The idea that the “merit” selection panels can be “nonpartisan” is a pleasant fiction that is clearly and easily refuted by the experience in other states. In Tennessee, lawmakers nearly let the entire “merit” selection system expire because it had become so deeply partisan. In Missouri, a petition is working its way onto the November ballot that would bring back democratic elections, following rising public frustration with a “merit” selection system that has been completely hijacked by the state’s powerful trial lawyers lobby. In Florida, the state NAACP actually filed an amicus brief with the state Supreme Court charging that “the specter of racial discrimination has been raised” by the “merit” commission’s actions.
The Chronicle doesn’t say how Texas will avoid similar pitfalls – probably because it can’t. Exactly what immaculate conception is going to give rise to a truly “nonpartisan” commission? Any commissioners appointed by the governor or legislators can’t be considered “nonpartisan” if that word has any meaning. Any commissioners selected by legal special interest groups – the state bar association, the trial lawyers association – will bring their own biases to the job.
Every leading public servant in America is inherently political. That’s what it means to live in a democracy. The key is to make public servants – including judges – accountable to the people. Democratic judicial elections ensure this accountability by giving citizens the power to remove public servants they deem should be replaced. “Merit” selection destroys it by making judges accountable to no one.
JudgesOnMerit Discovers Sand in the Sahara!
May 7, 2010
OK, so someone must have hacked into the computers over at JudgesOnMerit and posted a parody. How else to explain the breathless headline – “Merit Lives!” – over a post bragging about the budding support for “merit” selection from “unlikely sources” such as … drum roll please … trial lawyers! Who knew!?
At the risk of playing the straight man to those jokers, I guess I should point out the obvious: The reason trial lawyers love “merit” selection is because it gives them a seat (or two or three or four) at the table when the doors close and the secret meetings begin and legal elites get down to the business of picking judges.
In some states, trial lawyers don’t just have seats at the table - they own the table itself.
Take Missouri, for example. In that birthplace of “merit” selection, four of the seven members of the state’s “merit” board have ties to the Missouri trial lawyer association. Up until recently, in Tennessee 75 percent of the “merit” commissioners by law came from legal special interest groups like the Tennessee trial lawyers association.
Maybe it just took Pennsylvania trial lawyers longer than their peers in other states to figure out that “merit” selection is a rigged game that puts them in the driver’s seat when it comes to picking judges.
More on the “Perception” Problem
March 9, 2010
Yesterday I responded to an item by the folks over at JudgesOnMerit (”Why Perception Matters“). A closer reading turns up a number of other claims in the post that are false or misleading. Here’s a quick debunking:
First, JudgesonMerit claims that under the plan the group supports, judges would be screened “by a non-partisan citizen panel representing the diverse spectrum of interests in the community.” Actually, under the plan the group supports, at least half of the panel members must be lawyers. So much for representing “the diverse spectrum of interests.”
Second, the group claims “the public … will have the ultimate say in retention elections.” Actually, retention elections do nothing to ensure public accountability, but only assure a lifetime appointment to the bench. Of the 6,309 judges who ran in retention elections between 1964 and 2006, more than 99% were re-elected. Since “merit” selection was adopted in Tennessee, only one judge has ever lost a retention election.
Third, JudgesonMerit attempts to invoke the Founders, as if they would support “merit” selection. Actually, in Federalist 39, James Madison wrote that it is “essential” that a democratic government “be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” It seems pretty obvious that “merit” selection – where judges are chosen not by the great body of society (the people) but by an inconsiderable proportion of it (a small panel dominated by lawyers accountable to no one) is exactly the type of system the Founders wanted to avoid.
No Merit in Pennsylvania
January 6, 2010
The Philadelphia Inquirer editorializes on an unfolding judicial scandal in which two county judges “face a 48-count federal racketeering case for allegedly taking payoffs to jail teens.” According to the Inquirer, this scandal represents “clear evidence” that Pennsylvania voters should be stripped of their constitutional right to select judges in competitive elections.
Huh?
The logic here, such as it is, seems to be that voters aren’t sophisticated enough to keep potentially corrupt judges off the bench. But a “merit” panel, on the other hand, could somehow divine which judicial candidates are apt to lose their moral bearings on the court and would thus pick only demi-gods, not the crooked rabble chosen by voters.
Actually, I think the authors of Pennsylvania’s Constitution had it right. They understood that not all public servants are angels, and that the best way to keep them accountable was make them go before the people on a regular basis to keep their positions. Under merit selection, once a judge is on the court it is almost impossible to remove him/her, as the experiences in states like Tennessee and Missouri demonstrate.
The truth is, neither judicial elections nor “merit” selection are infallible and both systems can produce judges that are lazy, incompetent and even corrupt. Fortunately the legal system itself can charge and remove judges who are truly venal – such as the two in Pennsylvania if the allegations prove true. But it seems to me that making judges even less accountable through “merit” selection is a strange way to keep them honest.
Judicial Elections in Pennsylvania: A “Bad Taste”
November 11, 2009
The folks at Pennsylvanians for Modern Courts didn’t like Pennsylvania’s elections last week – in fact, those elections “left a bad taste” in their mouth. In a Philadelphia Daily News article yesterday, they complained that voter turnout was “appalling” and fretted that voters “feel unprepared to decide” who should sit on the bench. Even worse, those who did vote may have been swayed by “random or irrelevant factors.” Their solution: Let’s get rid of voting altogether!
If turnout alone is going to dictate how we pick our public servants, we’re going to have to start cancelling a lot of elections. FairVote is a civic minded group trying to pump up voter turnout. “In many cities,” the group notes, “mayors of major cities are often elected with single-digit turnout:”
“… turnout was only 5 percent of registered voters in a recent Dallas mayoral election, 6 percent in Charlotte, and 7 percent in Austin.”
Should we abolish democratic elections for mayor?
Congressional primaries also typically have low turnouts. FairVote reports “turnout was only 7 percent in a recent Tennessee primary, and was only 3 percent for a U.S. Senate primary in Texas.”
Should we start letting an unelected commission of “experts” choose who is going to represent us in Washington too?
The solution proposed by Pennsylvanians for Modern Courts predictably is that old standby: merit selection. I’d rather have a fair, fully-transparent, democratic election where even a small turnout of voters represented the state than allow a few lawyers and other unelected, unaccountable special interests select state judges behind closed doors.
Opposition To Judicial Elections Ignores Reality
August 12, 2009
Yesterday, Shira of JudgesOnMerit.org praised a Huffington Post op-ed by a retired federal judge which proclaimed that the election of judges is unacceptable and akin to an American Icon contest. Specifically, Shira decries the “lack of relevant information available to voters.”
As I discussed back in June, Shira and Sarokin’s preferred alternative-judicial selection-suffers from an even more impenetrable lack of information, and therefore accountability. At the time I praised the Wall Street Journal’s recognition of necessary reforms to Tennessee’s merit selection process:
That reform, along with requiring the commission to come out from behind closed doors and meet in public, is ‘a good first step toward bringing transparency and accountability to those judging the judges.’
All sides of this debate can agree that there have always been “unseemly” interests seeking to influence the outcomes of judicial decisions. Neither system can extinguish this phenomenon. The question is which provides better accountability. Unelected boards operating in sometimes near-secret conditions can hardly be a better alternative to public elections-even if many people don’t take the time to study all the available information on their candidates.
If we take Shira’s position to its logical conclusion, shouldn’t we stop electing other local officials too? Certainly the election of school board members, mayors, and city councilmen must suffer from the same information shortages and ugly politicking. If judicial selection proponents have such little faith in the American voters, why bother with democracy at all?
“Busting The Monopoly On Judicial Selection” In Tennessee
June 15, 2009
“The lawyers who have dominated judicial selection are getting put back in their place,” says a Wall Street Journal editorial today about the moves the Tennessee legislature took last week to modify the state’s so-called “merit” system for selecting judges. The new system takes the power of choosing who sits on the judicial nominating commission away from legal special interests and gives it to elected officials. That reform, along with requiring the commission to come out from behind closed doors and meet in public, is “a good first step toward bringing transparency and accountability to those judging the judges.”
As I wrote in my June 2nd post, a critical test was whether the legislature adopted a proposal in the Senate bill which would have allowed the governor to reject two slates of the commission’s nominees and choose any qualified judicial candidate. While this reform was stripped out of the final version, the Journal argues it should be reconsidered when the legislature takes up Round 2 of fixing Tennessee’s broken judicial selection system:
“In its best incarnation, a judicial commission is designed to serve a useful editing function, providing a short list of desirable candidates for the Governor, similar to the way staffers might under a federal system. When it’s dysfunctional, the Governor should be allowed to take the reins.”
This is right, of course, but the real solution can be found in Tennessee’s Constitution, which gives the power to choose judges to the state’s voters. Nevertheless, Tennessee’s reform effort clearly signals a deep dissatisfaction with elitist schemes to elevate special interests above the people when it comes to deciding who will have the honor of serving the public on the bench.
Update: In addition to today’s editorial on Tennessee , the Wall Street Journal editorial page kept the judicial election faith over the weekend by praising the failure of some nasty anti-tort reform legislation in Texas. (A Ten Gallon hat tip to ATRA and TCJL)
Tennessee Weakens Judicial Star Chamber
June 2, 2009
Tennessee’s governor will have more power over judicial nominations and legal special interests will have fewer seats on the state’s judicial nominating commission. The changes come following votes in the House and Senate to extend the commission through 2012, reports the Tennessean.
Both the House and Senate versions allow the governor to reject the commission’s first slate of nominees and ask for a new one. But the Senate bill has a provision with the potential to break the trial bar’s strangle hold on the judicial selection process. Under its version, the governor can reject both slates and then choose any qualified applicant – a compromise I first proposed here on April 11. This would make the elected governor fully accountable for judicial choices and judges themselves accountable, albeit indirectly, to the people. Allan Ramsaur, executive director of the Tennessee Bar Association, says both versions are OK with him, which should provide enough political cover for House members worried about offending the state’s legal poo-bahs.
Vanderbilt University Law Professor Brian Fitzpatrick noted the significance of this small, but crucial difference:
“No state with a merit system has ever taken the power to select judges away from the commission and given it back to an elected official.”
While both bills cut the number of lawyers on the 17-member panel from 14 to 10, lawyers will still hold a majority – a step in the right direction, but a move unlikely to quiet supporters of democratic elections (like me) who believe special interests have far too much power to pick judges.
Judgesonmerit.org – which has spent 20 years lobbying to revoke the constitutional right of Pennsylvanians to elect their judges – is publicly clucking over this “victory,” but they must privately realize the case for selecting judges in secret by unelected, unaccountable tribunals controlled by legal special interests has been dealt a significant (if not yet fatal) blow.
More Lobbying By Judges In Tennessee
April 29, 2009
With just 62 days until Tennessee’s “merit” selection system expires, blogger Terry Frank has been monitoring the ongoing lobbying activities of several sitting judges, including members of the Supreme Court, who are using their offices to try to defeat legislation that would make judges more accountable and the judicial selection process more transparent. Ms. Frank notes that Canon 2 Sec. B of Tennessee’s judicial Code of Conduct requires that judges not “lend the prestige of judicial office to advance the private interests of the judge or others;” And:
“As Holder, Koch, Wade and Kirby are all sitting judges with a stake in the legislative outcome so to speak, are they lending the prestige of their office to advance what will benefit them personally? It looks like it to me.”
Sec. B also says “judicial letterhead must not be used for conducting a judge’s personal business.” While Ms. Frank agrees that judges have First Amendment rights like anyone else:
“ … they [Justices Koch and Holder] have clearly used their positions to lend greater weight and authority to their opinions regarding passage of this particular legislation. So have Justices Kirby and Wade by denoting their titles/positions on their letterhead.”
Wait a minute – aren’t judges in Tennessee chosen by “merit” selection? And doesn’t “merit” selection ensure that judges will remain cool, aloof, serene … floating above the political fighting and grubby lobbying that consume lesser public servants? Guess not.