“Merit” Selection Crowd OKs Campaigning by Judges
December 15, 2011
The reverberations from the decision by Iowa voters to dump three Supreme Court Justices last November continue to shake the “merit” selection movement. The Iowa City Press-Citizen is out with an editorial endorsing the idea that judges should “set aside their historic reluctance to engage citizens in civil discourse about controversial rulings …” The gavel grabbers over at Justice at Stake don’t seem to object. In other words, the High Priests of the “merit” selection campaign now think it’s just fine for judges to campaign! For re-election! Like ordinary politicians!
The Press-Citizen contends that the “only real problem” with “merit” selection in Iowa “is that it all but ties the hands of judges from defending themselves against any organized efforts to unseat them.” So apparently it’s OK to introduce politics into the judicial system – as long as it means protecting judges chosen in secret by a tribunal of legal special interest groups. University of Iowa Law School Professor Todd Pettys goes even further, suggesting the retention elections be abandoned and that judges only serve a single term. Under this scheme, judges would have no accountability to the people they serve whatsoever.
Think for a minute about the theory of judicial selection “merit” selection system now represents. Judges should be chosen by a small committee dominated by legal special interest groups. These committees must meet in secret, with no public record of their proceedings. Citizens must never vote against judges running for retention – even if those judges flagrantly overstep their authority by enacting social policy that is the proper domain of elected legislatures. And if citizens do vote against judges, “merit” selection proponents will ban retention elections, giving us an Imperial Judiciary, or encourage judges to campaign like politicians, undermining the central promise of the entire “merit” selection movement, which is that it eliminates politics from judicial selection. And they wonder why state after state is pushing back against this incredibly undemocratic system for choosing public servants.
Iowa Justices Take to the Campaign Trail
October 13, 2011
Following the decision of Iowa voters to oust three Supreme Court justices last November, the state’s high court members have taken to the campaign trail in an attempt to preserve their jobs. In order to “foster a better understanding of the courts,” Iowa’s Supremes are barnstorming the state, hearing cases in Cedar Rapids, Mason City and Carroll, in addition to their home base of Des Moines. Tonight, after listening to oral arguments in Mason City, the justices plan a “public reception” for area citizens. Then, it’s on to six high schools to “talk to students about the role of the courts.” Next thing you know, they’ll shed those black robes and start working ropelines and kissing babies! One lower court judge has even started writing a bi-weekly newspaper column called “Court Calls” – offering a “civics education” to the public and giving judges a “meaningful way to communicate” with voters.
As far as I know, neither Justice at Stake nor Sandra Day O’Connor has raised a peep about the grave threat to our courts from justices sullying themselves by descending from the Olympian heights of the bench to interact with ordinary mortals. So much for the claim of “merit” selection proponents that judicial independence absolutely demands that judges remain completely aloof from the voters. A cynic might conclude that the entire “merit” selection campaign was never really about preserving judicial independence at all – but a clever, poll-driven scheme to allow the Professional Left to tip courts in their preferred ideological direction.
Iowa Chief Justice Lashes Out at Voters
September 19, 2011
Iowa Chief Justice Mark Cady is accusing Iowa voters of engaging in “an attack on the concept of judicial independence and the core of the country’s values” for declining to retain the services of three Supreme Court justices in last November’s elections. (H/T GavelGrab)
Apparently he’s forgotten that the ability to hold our public servants accountable is also a “core” value in American democracy.
Chief Justice Cady then goes on to imply that elected judges would not have the moral courage to decide controversial cases such as the U.S. Supreme Court’s ruling in Brown v. Board of Education. Correct me if I’m wrong, but didn’t Brown overturn Plessy v. Ferguson – a ruling upholding the constitutionality of racial segregation laws handed down by a Supreme Court appointed in the exact same manner as the Brown court? And wasn’t Plessy’s outrageous “separate but equal” standard allowed to stand by every Supreme Court for the next 60 years, while state after state used the ruling by appointed judges as a justification for implementing Jim Crow laws? Come to think of it, didn’t an appointed Supreme Court also issue the Dred Scott decision, which held that Congress had not authority to prohibit slavery in the territories – a decision that led to the rise of the Republican Party, the election of Abraham Lincoln and the outbreak of the Civil War?
Unfortunately, history is replete with examples of both appointed and elected judges making bad decisions. It would be nice if we could magically confer wisdom and moral courage on judges merely through the mechanism we choose to select them. Since we can’t (Chief Justice Cady’s musings to the contrary notwithstanding), the best way to ensure a judiciary consistent with the country’s “core” values is to make sure judges remain both independent and accountable.
“Merit” Selection Proponents Turn McCarthyite in Iowa
July 8, 2011
Iowa’s dwindling band of “merit” selection supporters – who watched in horror as Iowans dumped three justices chosen by “merit” in the last election – is up in arms again. This time they’re fuming at Governor Terry Branstad for appointing to Iowa’s Judicial Nominating Commission a lawyer who does not subscribe to the Group Think that now predominates within elite legal circles – namely the conceit that legal elites do a better job picking judges than ordinary citizens or their elected representatives.
It seems attorney Ryan Koopmans committed the grave sin of speaking favorably about taking power away from the unelected commission to which Brandstad appointed him and adopting a federal-style system for appointing judges, where the elected governor would make the choice with the advice and consent of elected Senators. A group led by two politicians called Justice Not Politics pronounced Koopmans’ views “troubling” and accused Branstad of selecting commissioners “intent on tearing down our [merit selection] system” – as if Koopmans was some kind of Fifth Column spy burrowing into the commission intent on ending democracy as we know it.
You’ve got to tip your hat to Branstad for turning Iowa’s most sophisticated “merit” selection defenders into a bunch of frothing-at-the-mouth, modern-day McCarthyites. I can almost hear the laughter emanating from the Governor’s Mansion in Des Moines.
While my own preferences run toward making the judicial selection process as open and democratic as possible through transparent elections, a federal system would be a vast improvement over the clubby, opaque, secretive “merit” selection scheme that too often produces arrogant judges who are often hostile to the values of the people they serve. In the meantime, I’ll rest easier knowing Ryan Koopmans is sitting behind “merit” selection’s closed doors.
The People are Sovereign in Iowa, Not the Court
May 11, 2011
A recent Des Moines Register editorial raises important questions about the power of courts and legislatures in our democratic society. Unfortunately, those questions are hidden in a ranting screed against Iowa citizens who removed three state Supreme Court justices in the last election and legislators who now seek to impeach four more justices – all of whom voted to overturn the Iowa Legislature’s Defense of Marriage Act.
In defending the Court, the Register rolls out John Marshall’s famous opinion in Marbury v. Madison, which established the principle of judicial review. But the Register confuses judicial review with judicial supremacy. While accusing impeachment supporters of believing “the Legislature can do no wrong,” the Register essentially asserts that the Court can do no wrong. Read more
Boot the Lawyers off “Merit” Committees!
March 2, 2011
Vanderbilt Law Professor Brian Fitzpatrick, who has done so much to document the abuses (especially here and here) of “merit” selection, brilliantly called the bluff of the entire “merit” selection gang at a recent forum in Iowa. According to media reports, Fitzpatrick politely suggested that lawyers shouldn’t serve on judicial nominating commission or if they do, they shouldn’t be elected by the state bar. If “merit” selection is really just about taking politics out of judicial selection and not an insider’s campaign to turn choosing judges into a rigged game controlled by legal elites, then lawyers deserve no special representation on “merit” panels, right?
Given the reaction in the room, you would have thought Fitzpatrick called for repealing the First Amendment. The lawyers were aghast! Iowa “merit” commission member and legal bigwig Guy Cook argued that attorneys deserve their place of privilege because “lawyers do have a common goal of ensuring judges are selected who are qualified, with highest integrity and greatest temperament.” Excuse me, but don’t teachers, doctors, police officers and plumbers have exactly the same goal?
Fitzpatrick has zeroed in on one of the fatal flaws of “merit” selection and a primary reason why so many voters in so many states are pushing back against it. How can a system that puts a single special interest group in charge of judicial selection plausibly claim to remove politics from the process?
In American democracy, there are no privileged classes and no person’s vote should be worth more than any other. Lawyers enjoy no constitutional right to have the controlling say when it comes to selecting the judges who serve our people.
Iowans Fighting Back Against “Rigged System”
February 17, 2011
The courageous decision of Iowa voters to dump three activist state supreme court justices last November continues to reverberate. The Gavel Grabbers over at Justice at Stake report that Iowa Chief Justice Mark Cady is pushing a “campaign not to campaign” for state judges because “campaigning” in front of voters “threatens one of our core values, which is independence.”
But Chief Justice Cady isn’t talking about “independence” as our Founders and constitutional authors understood it – meaning independence from the other co-equal branches of government. What Chief Justice Cady wants (along with so many other legal elites) is something far more radical – a judiciary that is completely independent from and unaccountable to the people they serve. That’s not judicial independence, it’s judicial supremacy.
Meanwhile Bob Vander Plaats, who helped engineer the defeat of the three Iowa justices, points out that the state’s “merit” commission is currently comprised of 12 Democrats, one Republican and one independent – which he aptly describes as a “rigged system.”
So let me get this straight: Handing judicial selection over to a tiny commission dominated by one political and completely unaccountable legal special interest guarantees judicial “independence.” But having judges go before the people to explain what judicial philosophy guides their decision-making somehow represents a threat to democracy?
Lifting the Rock on the “Merit” Selection Campaign
January 25, 2011
“Merit” selection proponents like to pretend that the entire “merit” selection campaign just bubbled up from the grass roots over citizen concern about judicial independence – a line the gullible press typically laps up. Gary Marx demolishes that farce in a two-part post on NRO’s Bench Memos.
As Marx demonstrates beyond any reasonable doubt, “merit” selection is not some organic, grassroots uprising, but a vehicle for placing trial bar-connected, left-leaning judges on state courts. In Iowa, Marx points out that three of the state Supreme Court’s current members are former members of the Iowa Trial Lawyers Association, while a fourth justice tied to the trial lawyer lobby was thrown out by voters in November.
Voters are starting to figure out the game. That’s why, as Marx points out, states such as Iowa, Tennessee, Kansas, Oklahoma and even Missouri (“merit” selection’s birthplace) are debating whether to amend “merit” selection to reduce the influence of special interest groups or scrap it altogether.
More Backlash Against Lawyer-Picked Judges in Iowa
December 10, 2010
Iowa voters have filed a court challenge to the state’s judicial nominating system, arguing it gives too much power to special interests and denies voters an equal voice in selecting justices for the state Supreme Court. According to attorney James Bopp at the James Madison Center, the current system “guarantees lawyers a far greater say than ordinary citizens in Iowa in selecting judges who have great power and control over the lives of regular citizens.” Bopp, who worked as a legal advisor to Citizens United, is lead counsel for the voters.
Mitch Daniels, “Merit Selection,” and 2012
December 6, 2010
The Iowa Independent has an interesting piece speculating about whether Indiana Governor Mitch Daniels’ support for “merit” selection could become an issue if he decides to run for president. Several pro-family groups have called on Daniels to push for changes in Indiana’s judicial selection system, given “merit” selection’s penchant for producing activist, left-leaning judges. This is an issue that Bench Memos has written about and been following for the last few months, led by Gary Marx.
Could be an interesting debate in 2012 – stay tuned.