“Merit” Selection and the Imperial Judiciary
March 31, 2011
One serious byproduct of a system as anti-democratic and unaccountable as “merit” selection is the tendency toward an Imperial Judiciary. When judicial selection becomes a clubby, insiders game that stiff-arms voters, judges no longer feel they owe their offices to the good opinions of the people they serve and they too often start imposing their ideological views with little regard for state Constitutions or elected legislatures. A case in point is Arizona, where Arizona Republic columnist Robert Robb points out:
“In the 1990s and the early 2000s, however, there was a serious problem with an imperial state Supreme Court. During that period, justices decided that the state’s Constitution no longer would accept the system of funding school construction that had lived comfortably alongside it since statehood and that is somehow required the public funding of some abortions.
“They started tossing some propositions off the ballot. The only common theme among those that got tossed was that they promoted conservative causes.
“The justices even appointed themselves editors in chief of the ballot-publicity pamphlet, in one case censoring a warning from the legislative budget staff that expanding the Medicaid population might end up costing the state general fund big bucks. Which, of course, it did.”
While Robb suggests the current court has been more circumspect, he agrees that Arizona’s “merit” selection system requires “a more robust system of checks and balances.” One reform making the rounds is a plan that to strip the State Bar of Arizona of its role in nominating members of the “merit” selection commission, which recently passed the state Senate. Columnist Robb suggests going further by adopting a modified federal system. This would at least give the power over judicial selection to an elected governor, rather than an unelected, unaccountable commission.
Robb writes that the “Buckley conservative in me says that better, more-fundamental reform is possible.” But he calls judicial elections “anathema to those who understand the … fragility of the rule of law.” Perhaps he’s forgetting William F. Buckley’s famous quip that he’d rather entrust the government of the United States to the first 400 people listed in the Boston phone book than the Harvard faculty. Buckley was making the point that he’d rather rely on the good judgment and common sense of ordinary citizens, rather than the rarified opinions of “experts” when it comes to running the country. Good insight then – and good advice for reforming Arizona’s judicial selection system today
“Merit” Selection on the Hot Seat in Arizona
March 9, 2011
The Arizona Senate moved to make judges more accountable to the people earlier this week when it approved legislation that would modify the lawyer-dominated “merit” selection system it uses for the state’s highest courts and require judges to go before the Senate for confirmation prior to taking a seat on the bench. While certainly not perfect, the proposed reform suggests that even in the home state of the “merit” selection campaign’s Grand Dame, Sandra Day O’Connor, people are increasingly fed up with a system that puts lawyers in charge, sidelines the views of citizens and produces judges that are unaccountable to the people they serve.
Election Fallout Leads to Calls to End “Merit” Selection in Arizona
November 18, 2010
The aftershocks from the November elections – where Iowans dumped three activist Supreme Court justices and Nevadans soundly defeated a “merit” selection initiative – continue to reverberate, this time in Justice Sandra Day O’Connor’s home state of Arizona.
Arizona Republic columnist Robert Robb has a piece calling on those who “value an independent judiciary” to “abandon their defense of the current merit selection system…” Robb contends that a “critical mass of the electorate” regards “merit” selection “as having insufficient accountability.”
While Robb does not go so far as to embrace judicial elections, he proposes allowing the elected governor to nominate judges, free from the constraints of an unelected, unaccountable “merit” panel, with appellate nominations subject to Senate confirmation.
With even Arizona buckling, we may look back on 2010 as the year when Americans seized back control of their courts from the legal elites.
An Appeal to a Half-Hearted “Merit” Proponent
November 12, 2010
Meryl Chertoff of the Aspen Institute’s Justice and Society Program has a thoughtful piece in the Huffington Post that purports to correct some “myths” about judicial elections, but is most useful for revealing the crumbling arguments behind “merit” selection.
Ms. Chertoff leads off by characterizing the Nevada ballot initiative that went down in flames last week as having “broad bipartisan support.” Apparently not broad enough! – it got hammered by a broad bipartisan majority: 58% to 42%. She then rolls out Sandra Day O’Connor, as if the mere appearance of such a mighty legal eminence should be enough to sway the ignorant masses into giving up their role in choosing the judges who serve them.
Alas, Ms. Chertoff informs us, most of what Americans “think they know” about judges “is wrong.”
Ms. Chertoff refers us to Article II and III of the Constitution for a little civics lesson in how federal judges are chosen. She suggests “merit” selection is a “hybrid” between the federal system and elections, but fails to point out the absolutely crucial distinction. Under the federal system, judges are nominated by a president elected by the people and confirmed by senators elected by the people. So critical is the good opinion of the people about the kind of judges that presidents and senators will favor that entire campaign speeches, TV ads and platform planks are dedicated to this issue alone.
This is precisely what the Founders intended. Read more
“Merit” Selection Debated in Arizona
May 24, 2010
This past weekend, the Prescott, Arizona Daily Courier debated the pros and cons of “merit” selection. Arizona’s “merit” panel is, of course, frequently held up by former Supreme Court Justice Sandra Day O’Connor as worthy of emulation by other states.
“Merit” Selection Setback in Arizona
February 18, 2010
“Merit” selection suffered a setback earlier this week – right in the backyard of former U.S. Supreme Court Justice Sandra Day O’Connor who has become the most high-profile lobbyist for this system which empowers legal special interest groups to select judges.
Under a proposal passed by Arizona’s Senate Judiciary Committee on Monday, voters could have the opportunity to scrap “merit” selection and replace it with a federal-type system where judges are appointed by the governor with confirmation by the Senate.
Although Arizona’s “merit” commission is less top-heavy with lawyers than panels in other states, Senator Jack Harper suggested the system has been skewed toward keeping conservative judges off the bench: “There’s no chance that this committee is ever going to be middle of the road.”
The system has also completely insulated Arizona’s top judges from public accountability. Since “merit” selection was adopted in 1974, only two judges have lost their seats in retention elections.
The proposal still has a long way to go before it reaches voters – and you can expect special interest groups led by Justice at Stake and Justice O’Connor to fight tooth and nail against it. Still, it’s refreshing to see someone standing for the not-so-radical idea that judges – like every other public official – should be accountable to the people they serve.
Justice O’Connor Comes Out Against Secret Selection of Judges
March 2, 2009
Former Supreme Court Justice Sandra Day O’Connor told a group of Missouri law students that the state’s judicial nominating commission should no longer be allowed to meet in secret – endorsing a key provision of legislation moving through the Missouri Legislature that would reform the state’s “merit” selection system:
“You can’t have secret proceedings.”
Justice O’Connor admitted, however, that even though her home state of Arizona has open judicial selection meetings, interest in the judicial selection process seems confined to the legal community. Perhaps allowing voters to press their noses against the glass window while a group of lawyers decides who will control one-third of a state’s government just isn’t enough. That’s why the Missouri reform legislation goes further by diluting the influence of special legal interest groups in the judicial selection process and making the process more accountable. No word in the media reports on whether Justice O’Connor supports these steps as well.
Of course, the real answer to making judicial selection more open and accountable is to give the power to choose judges back to the people, through democratic elections. Justice O’Connor opposes judicial elections because fundraising in these races has risen to what she calls “obscene” levels. But this is a criticism that can be applied to all campaigns – including the Obama campaign, which spent an astounding $750 million-plus to win the White House. If campaign cash is poisoning judicial selection, should U.S. Senators who accept money from Trial Lawyers, Inc. be prohibited from voting on nominees to the federal bench?