More on the “Perception” Problem
March 9, 2010
Yesterday I responded to an item by the folks over at JudgesOnMerit (”Why Perception Matters“). A closer reading turns up a number of other claims in the post that are false or misleading. Here’s a quick debunking:
First, JudgesonMerit claims that under the plan the group supports, judges would be screened “by a non-partisan citizen panel representing the diverse spectrum of interests in the community.” Actually, under the plan the group supports, at least half of the panel members must be lawyers. So much for representing “the diverse spectrum of interests.”
Second, the group claims “the public … will have the ultimate say in retention elections.” Actually, retention elections do nothing to ensure public accountability, but only assure a lifetime appointment to the bench. Of the 6,309 judges who ran in retention elections between 1964 and 2006, more than 99% were re-elected. Since “merit” selection was adopted in Tennessee, only one judge has ever lost a retention election.
Third, JudgesonMerit attempts to invoke the Founders, as if they would support “merit” selection. Actually, in Federalist 39, James Madison wrote that it is “essential” that a democratic government “be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” It seems pretty obvious that “merit” selection – where judges are chosen not by the great body of society (the people) but by an inconsiderable proportion of it (a small panel dominated by lawyers accountable to no one) is exactly the type of system the Founders wanted to avoid.
Another Admission: “Merit” Selection Campaign is About Perception, Not Reality
March 8, 2010
Last week I did a little post on the ABA’s striking admission that the whole “merit” selection campaign is based purely on “perception” – not any real evidence that elected judges are “for sale” as most “merit” selection proponents claim. Well, it seems to have struck a nerve!
Our friends over at JudgesOnMerit – the group trying to end democratic judicial elections in Pennsylvania – were out this morning with an item entitled, “Why Perception Matters.” After admitting that elected judges are “certainly not” corrupt and are “by and large fully qualified to serve,” the blogger makes a run at defining the “perception” problem. There’s a lot of throat-clearing, but the main point seems to be this:
“The greatest problem, however, has to do not with the outcomes in specific cases, but with the effect judicial campaigning and fundraising have on the public’s perception of justice. We pay respect and honor to judges when we address them; we clothe them in grave black robes; and we have them sit elevated from the rest of us, looking down in judgment. A simple traffic court judge is addressed as ‘Your Honor,’ while even the office of the President of the United States commands no such title. All of this, so that decisions handed down by the courts are respected – and that respect is so critical because the judiciary as an institution has no means to enforce its edicts. Indeed, for a court to have any power at all, the public must believe that justice, and not some perversion of it, is being meted out in its marble hallways, and that judges are impartial arbiters of disputes and interpreters of law rather than mere political actors.”
The implication here is that the “perception” – which the blogger admits is false – justifies doing away with a right as fundamental as voting. But if “perception” alone disqualifies a judicial selection system, what about the “perception” associated with “merit” selection?
Under “merit” selection, judges are chosen not in open, transparent elections involving all the people, but by a tiny handful of elites (mostly lawyers) who deliberate behind closed doors. Isn’t there a “perception” that this turns the courts into closed, lawyers-only clubs?
And what about public accountability? In contested democratic elections, the people can decide if a judge is too beholden to this or that group and dismiss that judge from public service. Under the retention elections “merit” selection supporters promote, more than 99% of judges are re-elected. Doesn’t that create the “perception” that retention elections are just a fig leaf designed to insulate judges from the people they serve?
If all these groups – the ABA, JudgesOnMerit, Justice at Stake – believe the only problem with judicial elections is a false public perception, then why are they spending so much money to inflame this perception rather than debunking it?
Rolling the “Merit” Selection Rock up the Hill in Maryland
March 5, 2010
Voters in Maryland have twice blocked attempts to disenfranchise themselves when it comes to selecting judges. They have twice voted down proposals to end democratic judicial elections and adopt a “merit” selection system. But the “merit” selection crowd is pushing the rock up the hill once again – this time with the help of Attorney General (and future, would-be governor) Doug Gansler and former U.S. Supreme Court Justice Sandra Day O’Connor. (The Baltimore Sun has an excellent write up here and you can also read an op-ed of mine the Sun was kind enough to print here. )
“The independence of the judiciary is something we all ought to care about,” Justice O’Connor told a legislative panel in Annapolis, MD. It’s tempting to pass by this bromide with a thoughtful nod of the head, but there’s actually an interesting point here.
Everyone says they want judges to be “independent” – but independent from what? In my view, voters want judges who are independent from the influences of special interests – they want judges who will reach fair and impartial decisions. It’s up to voters in democratic elections to evaluate whether a judge has met this standard. “Merit” selection, however, delivers an entirely different kind of independence – namely judges who are “independent” from (and totally unaccountable to) the people they serve.
Baltimore attorney William H. “Billy” Murphy nailed this point, telling the Sun reporter that under “merit” selection voters…
“…have no idea what is going on behind closed doors. With the electoral system, you will know. If you don’t like it, and it stinks, you can do something.”
When America’s Founders wrote our Constitution, one of the primary goals was to protect the people from the government. “Merit” selection proponents want to turn that principle on its head by protecting the government (our public servants on the bench) from the people.
Another AHA! Moment
March 4, 2010
Last week I posted an item on Bill Moyers’ PBS rant about Citizens United, calling out the lack of any proof behind his hysterical assertion that there’s now a “crooked sign hanging on every courthouse in America reading ‘Justice for Sale.’” The Gavel Grabbers swooned, but also offered no proof to back up Moyers’ absurd assertion.
Well it seems I have an ally from an unlikely source: The American Bar Association.
In a letter posted on Gavel Grab yesterday, William Weisenberg, chairman of the ABA’s Standing Committee on Judicial Independence, writes that he “strongly disagree[s]” with Moyers’ statement and that he “view[s] this characterization of our Courts as impugning the integrity of our court system and the thousands of men and women who daily don their robes and administer justice in a fair and impartial manner.”
Picking apart Moyers was easy game for Weisenberg, but his next paragraph left me speechless:
“Our partners share the view, demonstrated in polling, that there is a serious ‘perception’ [his quotes] that financial support influences judicial decision-making. It is one thing to address the perception that you, JAS [Justice at Stake], our partners, and the ABA speak to often in our quest to drive money out of judicial selection. It is another thing to speak in terms of justice for sale as if it were a common thing.”
Now, you’re probably thinking … you lost your breath over THAT?
But what we have here is an admission from one of the High Priests of the movement that the whole gavel grabbing, multi-million dollar, “merit” selection campaign is based entirely on thin air – on a “perception” – not on any real, provable evidence that judges in mass numbers are selling their votes for cash. Justice in America is not “for sale” – it’s not even “at stake.”
Which raises two interesting questions:
- Wouldn’t it be better for Justice at Stake to spend George Soros’ hedge fund millions to dispel the false “perception” that justice is for sale?
- Will William Weisenberg write another letter to former U.S. Supreme Court Justice Sandra Day O’Connor rebutting her assertion that elected judges cannot “dispense law without prejudice?”
Ohio Judicial Elections: Common Sense From Ohio’s Bench
March 3, 2010
Ohio Chief Justice Thomas Moyer’s campaign to abolish democratic judicial elections has run into strong opposition from his colleagues on the state Supreme Court. In a Columbus Dispatch article, Justice Evelyn Lundberg Stratton said judicial elections are “open and transparent” and made the common sense observation that:
“… people are smart enough and there’s enough information out there for them to make those judgments about who should serve on the court.”
Justice Maureen O’Connor seconded the motion:
“No method for judicial selection is ideal and without problems. I believe that we should work with the elective system and concentrate on educating the public about the qualifications, records and philosophies of each candidate. The public can then decide who deserves their vote, trust and confidence.”
Justice Paul Pfeifer added that “merit” selection “is going nowhere” in Ohio.
In an era where judges routinely look down on the people they serve (see my post on Judge H. Lee Sarokin), it’s refreshing to hear from judges who understand that in a democracy the people are sovereign.
“Another Step Forward” in Missouri
March 2, 2010
Better Courts for Missouri scored a victory last week when a state court invalidated a challenge to their proposed ballot initiative. The initiative would change the way the state chooses most of its judges - currently via “merit” selection (aka the “Missouri Plan”) - in favor of direct elections. Better Courts for Missouri will now begin collecting signatures in hopes of qualifying for the November 2010 ballot.
“No Accountability”
February 26, 2010
The “merit” selection campaign is run by sophisticated political operatives, whose public messages are likely tested through polling and honed by focus groups. That’s why they always claim “merit” selection is merely about bringing “fairness” and “impartiality” to our courts. Who could be against that?
But every now and then, someone blurts out the truth and gives the game away. Today’s exhibit is a little item I stumbled onto from H. Lee Sarokin, a retired federal judge. After some throat-clearing about how “unseemly” and “demeaning” it is for judges to have to campaign, Judge Sarokin gets down to business:
“I do not mean to suggest that elected judges are necessarily unqualified or corrupt, but rather that merit selection is far superior to selection by election, since the voting public does not have the slightest idea which candidates are qualified or what are the qualifications for a good judge.” [my emphasis]
Most “merit” selection proponents understandably shy away from such blunt “voters are dunces” arguments. They know that asking citizens to strip themselves of their right to vote for their public servants on the bench is a pretty steep hill to climb, so they offer up meaningless fig leaf of retention elections so voters can labor under the illusion they’re still involved. Judge Sarokin is having none of it:
“As I have said previously, there is a suggestion that elections should be retained because they make judges accountable to the people, but there should be no such accountability.” [my emphasis]
Judge Sarokin proclaims that judges are only “accountable to the Constitution and the rule of law” – and I’ve heard other “merit” selection lobbyists make similar comments. This sounds so noble and high-minded that I’m embarrassed to confess I don’t have the slightest idea what it means.
I’ve seen the Constitution at the National Archives in Washington, DC. There is truly something awe-inspiring about seeing thousands of people quietly lining up every day to take just a quick glimpse at this faded parchment, then march solemnly on with a renewed appreciation for the genius of our Founders. But by what mechanism can this miraculous document hold a judge “accountable?”
Every top government official takes an oath to support the Constitution: the president, House members, Senators, judges – and in states, the governor, legislature and judges. They all swear a duty to uphold it, but someone has to determine whether they have fulfilled that responsibility. In a democracy, that someone is the voters. Saying judges should not be accountable to the people, but only to what their own conscience suggests the Constitution demands is the same as saying they are accountable to no one.
Bill Moyers Comes Out Against the First Amendment
February 26, 2010
That great ultra-liberal windbag Bill Moyers slammed the U.S. Supreme Court’s Citizens United decision, which that found that corporations have First Amendment rights to free speech and that Congress cannot use its power to muzzle speech it finds inconvenient during election time. (I didn’t watch the Bill Moyers Journal broadcast on PBS myself, but Billionaires Against Elections - aka Justice at Stake - summarized the lowlights on Gavel Grab.)
Moyers frets that the ruling “greatly expands corporate power over our politics” and “that corporate muscle just got a big hypodermic full of steroids.” Between bouts of such bloviating, he enlisted legal scholar/analyst/pooh-bah Jeffrey Toobin, who said the answer to this decision was - you guessed it - “merit” selection:
“When you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.”
Toobin offered no evidence to support this condemnation of democracy, or if he did, the folks who want to Grab the Gavel from the American people chose not to report it.
The truth is, Citizens United will probably not alter corporate spending on campaigns all that dramatically. Corporations have always been able to donate. The only difference now is these donations can be used to expressly advocate for a particular candidate, rather than going right up to the edge with issue ads. Any increase in corporate political spending is likely to be dwarfed by the trial bar and trade unions – two groups whose future prosperity is so dependent on their ability to pull the levers of government power.
In any event, Moyers himself had no concrete proof of any vast corporate conspiracy, other than a mysterious reference to a “very rich oilman” who paid $300,000 “to get a moment of President Clinton’s ear.” Did this fat cat get anything in return? I guess we’ll have to wait until the next episode.
Thus Spoke Justice O’Connor
February 10, 2010
Former U.S. Supreme Court Justice Sandra Day O’Connor has been a longtime public servant and for that she deserves the thanks of a grateful nation. But her crusade to abolish voter participation in judicial selection and turn the process of picking judges over to a cabal of elites is verging on crack-pottery.
Her latest outburst came in Michigan where she appeared at a forum sponsored by Wayne State University Law School and the Michigan chapter of the American Board of Trial Advocates. Among the honored guests were Democratic party hack Mark Brewer, Michigan’s deeply politicized unions, and the state’s powerful trial bar – the same crowd that tried unsuccessfully to hijack Michigan’s Constitution by unseating elected judges and gerrymandering legislative districts to suit their ideological ends.
It’s sad that Justice O’Connor would lend her considerable prestige for use as cover to a gathering of such rank political partisans. Even so, her arguments deserve to be taken seriously, so let’s have a look.
“There has to be one safe place in our system of government where decisions are based on the law and people can be fair and impartial,” said Justice O’Connor.
Does she really mean this? Does she not know that the elected officials of Michigan’s Executive and Legislative branches are all bound by exactly the same oath as Michigan’s Judiciary – the oath to “support the Constitution of the United States and the constitution of this state?” Is she really implying that Governor Granholm and Michigan legislators are operating outside the law? Or that their duty to Michigan’s Constitution is somehow less important?
“In order for judges to dispense law without prejudice, they need to be certain they won’t suffer political retribution,” said Justice O’Connor.
So are all elected judges in the U.S. – who presumably face possible “political retribution” every time they go before the voters – unable to “dispense law without prejudice?” Do we really want any public servant in a democratic society to be “certain” that his or her actions are so completely insulated from public accountability that he or she can’t be removed from office?
“Being right has to be more important than being popular,” said Justice O’Connor.
Very true, Justice O’Connor. But who gets to decide what is “right?” Here we get to the heart of the matter. Justice O’Connor and her allies in the “merit” selection campaign believe elites should be making this decision, not voters. They want citizens to give up their right to vote for judges and trust that the whole affair will be better handled by elites, by which they basically mean elite lawyers.
I don’t doubt Justice O’Connor’s sincerity, but unfortunately her comrades in arms at that Michigan symposium are not so public-spirited. They have strongly partisan, deeply ideological agendas. For many, the ends truly justify the means – even if the means require doing away with a basic democratic right like voting. And if a distinguished jurist like Sandra Day O’Connor is willing to help them further their political ends, they’re happy to oblige her.
More Democracy, Not Less In Wisconsin
February 8, 2010
A Madison, Wisconsin Capital Times editorial zings their brethren at the State Journal for its “misguided crusade” for an “unelected judiciary.” The whole thing is must reading, but a few points stand out. Among them:
“There is no evidence of significant support on the part of citizens or their elected representatives for the idea of creating a so-called ‘merit selection’ system, which would give political and legal elites the power to pick judges …”
This is an absolutely critical insight. The entire “merit” selection movement is not a grassroots uprising, but a manufactured campaign financed by the George Soros Institute for an Unaccountable Judiciary (aka Justice at Stake). The game plan is by now depressingly familiar: Commission a poll that suggests people are concerned about the influence of campaign contributions in judicial races. Then make the preposterous leap to the conclusion that elites, not ordinary people, ought to have the power to pick judges. And hope no one notices.
Of course, people are concerned about the influence of campaign cash on every elected office – from dog-catcher to president. Channeling progressive patron saint Robert La Follette, the Capital Times writes “the cure for what ails democracy is more democracy.”
That’s just another way of saying … when lawyers choose, the people lose.