Are Lawyers Really That Special?
September 15, 2009
Alaska’s lawyer-dominated “merit” selection system has survived a court challenge, as reported by the Anchorage Daily News and Gavel Grab. The original lawsuit, filed by the James Madison Center, objected to the composition of the state’s “merit” board - namely that a board’s majority is controlled in perpetuity by a single special interest group (the Alaska Bar Association). The state countered that:
” … lawyers deserve an elevated role [in picking judges] because of their special knowledge and that there’s no requirement for judged to be elected or for those involved in selecting judicial candidates to be elected.”
Think about that for a minute. Under “merit” selection, lawyers are considered so “special” that they deserve a privileged role in deciding who will control one-third of state governments. These legal elites are so “special,” in fact, that they should be allowed to carry-on this process with no public oversight and no public accountability whatsoever. So we’ve got lawyers who decide which lawyers get to pick the lawyers that hear cases argued by lawyers.
No one would dream, of course, of arguing that only teachers be allowed to choose school board members … or that only police officers should select county sheriffs. Yet don’t teachers and police officers have the same “special knowledge” as lawyers when it comes to determining who should sit at the top of their professions? And if lawyers, based on their “special knowledge,” deserve an “elevated role” in deciding who should interpret the law, why shouldn’t they have a similarly privileged place in deciding who will write the laws?
Strip away all the nonpartisan rhetoric and good government goo-goo-isms and the case for “merit” selection really boils down to the idea that lawyers are a privileged class in our society who are entitled to more power than ordinary citizens. The failure of the Alaska court challenge to “merit” selection is a setback - but that the case was mounted at all is a healthy sign that people around the country are fed up with being told that the views of legal elites are more important than their own when it comes to choosing our public servants on the bench.
Alaskan Lawsuit Challenges Judicial Selection System
August 31, 2009
Before she left office, Governor Sarah Palin was presented with a Hobson’s choice (or two) for one of her appointments to the state’s Supreme Court. She is, as most people know, deeply committed to the pro-life movement, not least because one of her sons is a special needs child. Like many Alaskans, she loves her state’s beauty but also wants to see reasonable development of its natural resources rather than simply locking them up.
But the state’s judicial selection commission gave her the choice of a noted pro-choice activist or a noted pro-environment activist. And there’s no reason to think that matters will be any easier for new Governor Sean Parnell as he faces a new vacancy on the Alaska Supreme Court.
Now, three Alaskans are taking matters into their own hands and showing some Alaskan practicality and good sense by challenging the judicial selection process as giving far too much power to lawyers.
As the lead attorney for the plaintiffs said, this case is about equality under the law. “‘The key point here as far as the constitutional issue is concerned is the equal right to vote,’ he said. ‘There’s no justification for lawyers to have some privileged position in selecting members of the judiciary. For anyone wanting fair and impartial judges, the last people who should be put on a nominating commission are representatives of the bar association, he said. ”
I couldn’t agree more. But the article goes further to describe the practical impact behind systems of merit selection:
“The trial lawyers’ bread and butter depends on liberal rulings on personal injury cases,” [the plaintiffs' attorney] said. “They have a direct financial interest in who is a judge. And if they are able to elect their fellow trial lawyers to the commission, they’ve got a really privileged position and ability to line their own pockets.”
Plain speaking, Alaska-style. We need more of that in the Lower 48.
It’s ironic that it takes a lawsuit to change the appointment of judges who will themselves have to rule on the lawsuit. But that’s just another problem that arises when the system is merit selection, rather than judicial election.
More Dissatisfaction With “Merit” Selection
July 6, 2009
There are only a few days of vacation left, but I thought I would draw your attention to an Alaskan news story that is important, but is not about Sarah Palin.
Voters in Alaska have filed a lawsuit to dump the state’s “merit” selection process and give citizens a greater say over who runs the state’s courts. The James Madison Center has a press release with the details (I’ve copied it below the jump too). Says James Bopp, Jr., lead counsel for the Alaska plaintiffs:
The current system “gives the Alaska Bar Association a stranglehold on the judiciary. Lawyers in Alaska have enormous influence over who the state judges are, while the ordinary voter is denied the right to an equal voice.”
Hobson’s Choice: Judicial Selection In Alaska
March 16, 2009
The Washington Times had a story yesterday about Alaska Governor Sarah Palin’s most recent appointment to the Alaska Supreme Court earlier this month. The Anchorage Daily News story on the same issue is here.
Here’s an excerpt from the ADN:
“Under the state Constitution, Palin had to select from among the nominees sent to her by the seven-member Alaska Judicial Council, made up of lawyers, public members appointed by governors and the Supreme Court chief justice, currently Dana Fabe.
“Last week, without explaining why, Palin took the unusual step of asking the Judicial Council to send her all information it had on the two finalists, Christen and Palmer Superior Court Judge Eric Smith.
“The council nominated them from a slate of six applicants. It takes four council votes for a candidate to be sent to the governor. None of the other candidates received any votes….”
“…Christen’s application included her membership in several charitable groups, including some from her past, but did not mention that she was on the board of Planned Parenthood in the mid-1990s. The organization, which didn’t provide abortions in Alaska until 2003, is now on the opposite side of a Palin-supported bill to require girls under 17 to get parental consent for an abortion.
“Back in the 1980s, Smith was executive director of the public interest environmental law firm, Trustees for Alaska. The group currently is on the opposite side of Palin over the listing of Cook Inlet beluga whales as endangered.”
So Palin was given a choice between someone who had served on the board of Planned Parenthood which is now on the opposite side of a law that Palin is championing – not something that would naturally appeal to a pro-life leader like Palin – and someone who had long served with a prominent environmental law organization and worked at the EPA as an attorney – also not something that would appeal to Palin given her stance on development of her state.
The ADN story also notes that “The Judicial Council’s bylaws direct them to nominate the ‘most qualified.’” – but again, only they get to interpret this subjective standard. So from the perspective of the judicial council, apparently these two were the only ones who were “most qualified,” which seems odd.
All this sure sounds like an attempt to tie the Governor’s hands.
But back to Governor Palin for a minute. Her Hobson’s choice is the real world of “merit” selection – where a favored few get to make the real pick of judges, even if a state governor formally gets the “choice.” The people may elect whom they will as Governor, but we get to pick the judges, and we’ll tie her hands by claiming that our choices are the “most qualified,” without offering any evidence as to why.
Then again, it shouldn’t matter whether Palin is pro-life or pro-choice or even whether the judges are. What matters is that the people should get to choose the judges whose decisions impact their lives and their state’s economic future.