Analysis Shows Widespread Discontent with “Merit” Selection

April 12, 2012

Bill Raftery at Gavel to Gavel (sounds like Gavel Grab, but not the same) has an interesting analysis of legislation introduced in states across America to change the way judges are selected.  According to Raftery’s review, at least 9 states considered measures in the most recent legislative sessions that would have significantly modified or even eliminated “merit” selection – part of a growing body of evidence that more people are beginning to understand the fatal flaws in this lawyer-driven system.  Some of the proposed changes include:

  • Arizona legislators considered bills to change the composition of “merit” selection panels and to end “merit” selection altogether.
  • In Florida, legislators proposed changing the composition of “merit” selection panels to make them more accountable.
  • Hawaii took up legislation to increase the transparency of “merit” selection commissions by providing more public disclosure of their activities.
  • In Indiana, the legislation was introduced to abolish “merit” selection.
  • Iowa legislators also considered bills that would end “merit” selection.
  • In Kansas, several bills to end “merit” selection were introduced.   
  • In Missouri, multiple bills were introduced to end “merit” selection and increase accountability for “merit” selection commissions.  
  • Oklahoma legislators considered legislation to end “merit” selection and make “merit” selection commissions more accountable.
  • In Tennessee, over a dozen bills were introduced to end “merit” selection, make the system more accountable and reduce the power of legal special interest groups in judicial selection.

Once entrenched, “merit” selection is extremely difficult to modify or replace.  State bar associations and other legal special interests fight every effort to reduce their control over the process.  Yet the fact that so many state legislators have come to the conclusion that “merit” selection is an inherently un-democratic and unaccountable way to pick judges suggests that the system’s foundation has some pretty serious cracks.

What is Abercrombie Hiding? Newspaper Files Lawsuit, Attempts to Lift Curtain on Hawaii’s “Merit” Process

August 25, 2011

The Honolulu Star-Advertiser has filed suit against Gov. Neil Abercrombie regarding his recent choice for the state’s supreme court.

Hawaii uses a “merit” process to fill vacancies on the court.  When a vacancy opens up, a judicial selection commission comprised of legal elites meets behind closed doors and secretly goes over applications it receives from potential nominees to the court.  The panel sends four to six approved names to the governor who then must select one to take the seat on the bench.  Abercrombie named Sabrina McKenna to the Hawaii Supreme Court earlier this year.

Abercrombie’s predecessors made a symbolic nod to transparency and at least released the list of names of the people they considered when making their choice.  The Star-Advertiser is asking Abercrombie to do the same — citing a law that mandates government records be open to the public — and he is refusing, lamely arguing that releasing the names would have a “chilling effect” on future applicants:

“The governor firmly believes that public disclosure is detrimental to attracting potential judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of these applicants.”

What’s truly chilling is Abercrombie’s blatant disregard for transparency in the judicial selection process and public disclosure. It’s also highly ironic.

Proponents of “merit” selection have long argued that democratic judicial elections needed to be stopped because judicial campaigns tainted the courtroom with the “appearance” of bias.  Former U.S. Supreme Court Justice Sandra Day O’Connor, for example, has famously stated that “the question is one of perceptions,” as she put it during an interview with the ABA Journal.  She went on to say:

“What the people need and want at the end of the day is a fair and impartial judiciary, one that’s qualified, fair and impartial.  It is much more difficult to achieve that by using popular campaign-funded elections.”

Well, turnabout is fair play.  Abercrombie’s insistence on remaining secretive about his deliberations and the candidates he considered for the bench raise questions of their own.  What is he hiding?  Who was on the list he doesn’t want anyone to see?

For all of the criticisms opponents make concerning democratic judicial elections, it is inarguable that the process is transparent and open to the public.  The candidates debate and campaign in front of the voters, their records are publicly vetted and the people are free to choose whom they believe is best suited for the bench.

This is a far cry from Hawaii’s “star chamber” which not only shuts the people out of the process, the governor himself thumbs his nose at them.

Shame on him.