Judges or Jelly Beans?
February 3, 2012
In a must-read column, George Will catalogues the way governments impose restrictions on political speech that is troubling or inconvenient to the people in power. As Will points out, the clarion cry of speech restricters is the need to get “money” out of politics – a refrain we constantly hear from the $45 million+ “merit” selection campaign. He then deflates this hot air balloon by noting that the $2 billion expected to be spent on this year’s presidential race (about six times more than was spent in 2000) represents about the same amount as Americans spend on Easter candy.
In the interest of deflating more hot air, I’d point out that spending on Easter candy outpaces the amount spent on judicial campaigns for the entire decade from 2000-2009 by a factor of 10. In the 2009-2010 election cycle, judicial candidates raised about $27 million — about 75 times less than was spent on jelly beans and chocolate bunnies. This is the crisis we’re supposed to get all worked up about?
NC Law Prof Demolishes “Merit” Selection
February 2, 2012
Strong oped by Elon University law professor Scott Gaylord on the subversive campaign afoot in North Carolina to take the power to pick judges away from the people. In a recent post, I pointed out that North Carolina Beverly Perdue’s new judicial advisory panel is stacked with trial bar poo-bahs. Gaylord lifts the rock even higher by digging into their political fundraising:
“Last month, Gov. Beverly Perdue appointed 18 individuals to her judicial nominating commission, which will advise her on judicial appointments. The committee is anything but nonpartisan, being dominated by prominent Democrats from across the state. A quick review of federal campaign donations of the newly appointed commission members shows that they donated almost exclusively to Democratic candidates.”
Gaylord demolishes the fantasy that “merit” selection takes “politics” out of the judicial selection process. Instead, “merit” selection merely “removes the citizens from the judicial selection process in favor of an unelected and unaccountable committee” – and a sharply partisan one at that. “Judicial elections provide North Carolinians with a proven way to hold the judiciary accountable,” Gaylord writes. Let’s hope the North Carolina legislature see through the ruse and preserves the system that has served the state well for over 140 years.
More on Tennessee
February 2, 2012
David Oatney weighs in on a proposed constitutional amendment in Tennessee to establish in law what the state has already achieved in practice – namely pick judges by secret “merit” selection rather than in open democratic elections by “the qualified voters of the State,” as the state Constitution prescribes.
The Wrong Direction for Tennessee
January 30, 2012
Tennessee Senate Speaker and Lt. Governor Ron Ramsey “says he’ll hit the campaign trail to get a proposed state constitutional amendment on the ballot in 2014” to affirm the state’s “merit selection” system. Many have long doubted the constitutionality of the scheme, which has been used since 1971, given the Tennessee Constitution’s requirement that judge be “elected by vote of the people.”
Ramsey has been a longtime critic of the current system and pressed much-needed reforms to make the nominating commissions less subject to special interest control. Ramsey says his goal is to have “conservative judges” who “interpret the law, not make law.” His assurances that a “merit” selection system newly embedded into Tennessee’s Constitution is based largely on the fact that he and fellow Republican House Speaker Beth Harwell now control who sits on the judicial nominating commission. That’s fine as far as it goes – and is certainly preferable to having commissioners hand-picked by the trial bar, as was the previous practice.
The better option, however, is putting the choice back in the hands of the people themselves through democratic elections. William F. Buckley’s quip that he’d rather be ruled by the first 500 people in the Boston phone book than the Harvard faculty wasn’t just a flash of his trademark wry humor. The wisdom of the people can’t be replicated by a group of elites assigned to make decisions for us. The fact that in Tennessee they’ll be “our” elites (at least temporarily) rather than “their” elites is really beside the point.
Do As I Say, Not As I Do
January 27, 2012
The Gavel Grabbers – the social media arm for Justice at Stake and the $45 million George Soros-fed campaign to shape America’s courts to his uber-left political leanings – are wringing their hands over the “anti-court fever” stoked by Newt Gingrich. Gavel Grab quotes criticism by columnists who decry the “constitutional crisis” Gingrich is “promising,” along with warnings his proposals would turn America into a “banana republic.” Yet Justice at Stake and the entire Soros machine has itself been guilty of slamming court decisions with which it disagrees with as much fervor as Gingrich.
Justice at Stake’s Bert Brandenburg, for one, condemned the U.S. Supreme Court’s Citizens United decision as a “ruling that pours gasoline on an already raging bonfire” and, with no evidence whatsoever, predicted it “will pose an especially grave threat to the integrity of elected state courts.” The Democratic Senatorial Campaign Committee has launched a campaign to overturn Citizens United, with no apparent protest from Justice at Stake.
Let’s see now: Gingrich’s critique of America’s courts threaten a “constitutional crisis” … but Justice at Stake’s attack on the U.S. Supreme Court serves some noble public cause. How does that work exactly? The answer is simple: it’s all politics. When Justice at Stake’s ox is being gored, as in the Citizens United decision, incendiary rhetoric and demands the ruling be overturned are fair game. But if someone else questions the courts … well! How dare they turn America into a “banana republic”?!
All of which goes to show, as if further proof were needed, that the entire Justice at Stake enterprise is merely an effort to promote a certain political and ideological viewpoint in our courts. That’s certainly their right. But to suggest that they’re serving some broader public good is, to quote another Gingrich line, a bunch of self-righteous baloney.
If It Looks Like “Merit” Selection and Smells Like “Merit” Selection…
January 23, 2012
Has “merit” selection become so discredited that its supporters won’t even utter the name? That seems to be the case in North Carolina, if Paul D. Carrington of the North Carolina Bar Association Committee for Judicial Independence is any guide.
In a Charlotte News and Observer oped last week, Carrington bemoans the U.S. Supreme Court’s decision to invalidate “matching fund” rules that shoveled taxpayer dollars to candidates in danger of “being outspent by rival candidates” who chose not to participate in public financing. Since, “alas, our good system is now dead,” Carrington and the North Carolina Bar Association are pushing a new plan that “assigns an important role to voters to approve or disapprove appointments of judges nominated by our governor on the advice of a diverse and disinterested panel.” Carrington applauds Governor Beverly Perdue for having “taken the first step in creating a sensible system” by establishing “a diverse committee to advise her on prospective appointments.”
Sure smells like “merit” selection to me, although Carrington doesn’t dare mention it. But just to be sure, I Googled “North Carolina judicial nominating commission” … and whaddya know! In addition to the usual assortment of Bar Association luminaries, it turns out this shiny new commission, which Carrington wants “firmly established to play an important role” in picking judges is chaired by Perdue’s “former general counsel” who just happens to be a “fellow of the American College of Trial Lawyers.” Another commission member is a Raleigh attorney who served as the “founding Chair” of the successor group to the North Carolina Academy of Trial Lawyers. Nope, nobody here but us “diverse and disinterested” committee members.
As an old political hand, the language of Carrington’s piece fascinated me. In place of a “merit” commission, we have a “diverse and disinterested panel;” instead of acknowledging that the committee would actually have the power to make nominations, we hear it would merely “play an important role” in the process; instead of dictating to Governor Perdue or a future governor, the commission merely “advise[s]” on “prospective appointments.” Of course, the whole proposal leads off with the assurance that it “assigns an important role to voters” – which is the first sign they’re about to get shafted.
Maybe I’m getting cynical, but I’ve been on the used car lot before and I know when a lemon is being gussied up so it can be pawned off on some unsuspecting customer, which in this case is North Carolina’s voters.
Meet James Bopp
January 20, 2012
The left-wing American Prospect has a long profile on James Bopp, a tireless leader in the battle to overturn restrictions on free speech in elections, which typically masquerade as “campaign finance reform.” Bopp is best known for filing the suit that resulted in the landmark Citizens United decision, but he also played a key role in Republican Party of Minnesota v. White – the 2002 U.S. Supreme Court ruling that lifted prohibitions that barred judicial candidates from discussing … well, pretty much anything. While the article tars White and Bopp for “the escalation in money, TV ads, and vitriol in recent judgeship races,” Bopp makes the more compelling, common sense point that it is “quite legitimate for people to want to know and take into account and vote against judges who they believe are not using the right values.”
Here, in a nutshell, you have the difference between proponents of “merit” selection and supporters of judicial democracy. The left-wing “merit” selection crowd believes judges should never deign to explain their reasoning to ordinary voters. Most voters are not sophisticated enough to understand the complexities of judicial reasoning anyway, so judges must be shielded from having their words or opinions become the stuff of “vitriol” or, heaven forbid, a TV ad. Those of us who believe in a more democratic judiciary trust that voters can weigh various sources of information about judicial candidates and separate out the important from the demagogic. We put our faith behind ordinary people in the voting booth, not legal elites who hide behind closed doors to decide who will rule us from the bench.
Although the profile is critical, you can’t help but notice a grudging respect for Bopp’s effectiveness at fighting for his beliefs.
Keep fighting for the people, James!
More Grumbling About “Merit” Selection in Missouri
January 19, 2012
Discontent over judges and the system for choosing them continues to build in Missouri, the birthplace of “merit” selection. The latest flashpoint: A plan by six appeals court judges to gerrymander state congressional districts. Senator Kevin Engler points out that the boundaries of three districts are suspiciously contorted right around his house, with one cutting right across the home of a neighbor. “That house is in, that house is out. Who would do that,” Engler asks?
The more important question is why – but we’ll never know the answer. According to news reports, the “judicial panel deliberated in secret, insisting it wasn’t subject to the state Sunshine Law.” Such is the arrogance of judges chosen by “merit” – rather than by the people or their elected representatives.
Senator Brad Lager suggests the judges’ actions “definitely strengthened the argument and gave fuel to the initiative to bring reasonable reform” to “merit” selection scheme that has been completely captured by special interest groups like Missouri trial lawyers association. Among the changes being discussed: Adding more ordinary citizens to the nominating panels so elite lawyers won’t completely control the process. The Missouri Bar, needless to say, is fighting every reform proposal.
Senate President Pro Tem Rob Mayer has pledged to bring “more transparency and accountability” to the process. In the meantime, the actions of Missouri’s judges continue to confirm that “merit” selection has utterly failed to remove politics from the judiciary, while giving Missourians judges who believe they are above any oversight from the public they serve.
Are Alabamans Too Stupid to Choose Their Judges?
January 17, 2012
This seems to be the line Justice at Stake is peddling, calling judicial elections “an exercise in blindfolded democracy” and arguing that elections basically amount to “pulling names out of a hat.” The Birmingham News has dutifully picked up on the idea and proposes doing away with elections altogether and “have judges at all levels appointed in a fair process that considers qualifications and legal experience most of all.”
Two comments seem relevant here. First, as former Michigan Supreme Court Chief Justice Clifford Taylor has tirelessly pointed out, the idea that under “merit” selection, nominating commissioners sit around poring over law school transcripts in search of the judicial candidate who got an A+ in Contracts rather than an A- is grossly misleading at best and an outright falsehood at worst. Imagine a commission evaluating the qualifications of Antonin Scalia and Stephen Breyer. For all intents and purposes, their qualifications are identical. So when choosing between a Scalia and a Breyer, the decision for President Reagan and President Clinton came down not to qualifications, but to which judicial philosophy each felt best serves the Constitution. Judicial Nominating Commissions make their recommendations based on the same biases and preferences – only they are not accountable to anyone for their decisions.
The second point is that doing away with elections because a handful of elites believe ordinary citizens are not educated enough about their choices puts us on a very slippery, anti-democratic slope. Should we end voting for school board because we don’t think people really “understand” what it takes to run a school effectively? What does the average person know about the latest academic research on law enforcement – and how can they vote intelligently for their local sheriffs without it? Alabama had a long and undistinguished history of using “literacy tests” to make sure people were “qualified” before they were allowed to vote. Is that really a legacy the “merit” selection crowd wants to embrace?
In American democracy, the right to vote for our public servants is not a privilege granted to those deemed worthy by some editorial writer or some Bar Association honcho or some flak for a billionaire who wants to push our courts sharply to the left. And it’s not conditional on the reason we choose to vote for a certain candidate – or whether elites thinks it’s a good reason or a bad one.
U.S. Chamber of Commerce Plans Push on State Supreme Court, AG Races
January 13, 2012
The U.S. Chamber of Commerce plans a “major effort” on state Supreme Court and Attorneys General elections this fall – a welcome signal that America’s leading business group will be fully engaged on races that are critical to promoting tort reform and reining in activist judges and AGs. The news came in Chamber President Tom Donohue’s annual State of American Business address. The organization I run, the American Justice Partnership will also be active in key races, supporting Supreme Court and AG candidates who believe judges should interpret the law, not legislate from the bench. Together, AJP and the Chamber’s mutual efforts are making a difference in advancing the rule of law and ensuring judicial accountability.