August 22, 2014
Attorney Mark Pulliam has a great piece in the City Journal that shreds the “pro” arguments for “merit” selection, as well as the “con” arguments against democratic judicial elections. Some highlights:
- “In California, merit selection has contributed to the creation of the nation’s top ‘Judicial Hell Hole.’
- “Texas, [which utilizes judicial elections], is consistently hailed by business groups and CEOs for having one of the nation’s best business climates, ranking first in most surveys.”
- “Judges sometimes forget – perhaps because they wear black robes, wield a gavel, sit behind an elevated bench, and are called Your Honor – that they are just public servants, no different than legislators or governors.”
- “We want judges to be ‘independent,’ but we also want them to be accountable … Judges sometimes deserve to be voted off the bench, and the knowledge that they will face voters can motivate them to perform their duties with diligence and integrity.”
- “ … merit selection is usually controlled by the organized bar. Lawyers as a group are not representative of the general population, and lawyers active in the state bar (or ABA) tend to be particularly partisan and ideological. (The policy positions adopted by the House of Delegates of the ABA, for example, are indistinguishable from those of the ACLU, and a far left-of-center of mainstream public opinion.”
- “Merit selection panels, such as the Judicial Nominees Evaluation (JNE) Commission in California, tend to be captured by special-interest groups … who use the evaluation to black-ball judicial candidates who don’t share their views – such as conservative lawyers or proponents of civil justice reform.”
- “Merit selection … does not remove politics from judicial selection; it simply takes control from the voters and puts it in the hands of politically active lawyers, while reducing transparency.”
October 24, 2012
The Globe Gazette is out with an editorial admonishing Iowans not to oust a fourth state Supreme Court judge over the court’s ruling requiring Iowa to perform same-sex marriages. The main thrust of the paper’s argument is this:
“Whether you are in favor of legal same-sex marriage or not (we are in favor), voting out justices based on the popularity of their decisions rather than their competence in office introduces a troubling level of politics and potential coercion into the state’s judicial system that up to now had been a model of fairness for the rest of the nation.”
But the decisive issue here isn’t the “popularity” of the decision; it’s whether Iowans believe the justices exceeded their legitimate authority by usurping legislation and creating an entirely new definition of marriage that overturns thousands of years of settled opinion. The question of whether this represents good or bad social policy rests with the people, not the Law Lords. The reason Iowa has retention elections is to keep judges accountable to the people they serve, not as a means to root out judicial corruption or incompetence, which can easily be handled by existing oversight and disciplinary measures.
When Iowans go to the polls on November 6th, they can oust Justice Wiggins with a clear conscience and a firm conviction that they are appropriately exercising their democratic rights.
October 19, 2012
In a recent vote, more than 80% of the attorneys in the Indiana Bar Association recommended the retention of two state Supreme Court justices and four Court of Appeals judges on the November ballot. Which means one of two things: Either Indiana judges are the wisest, most competent jurists on the planet … or judicial selection in Indiana has become a clubby, insider’s game that gives special privileges to special interest groups like the Indiana Bar.
As in every “merit” selection state, in Indiana, lawyers dominate the judicial selection process, controlling a majority of seats on both the Indiana Commission on Judicial Qualifications and the Indiana Judicial Nominating Commission. After hand-picking its own judges, the Bar then weighs in with its instructions to voters to keep its preferred jurists on the bench. The fact that not a single judge has ever lost a retention election in the 42 years since “merit” selection was adopted indicates how air-tight the Bar’s control has become.
October 16, 2012
The three former Iowa Supreme Court justices ousted by voters in 2010 have taken to the oped pages in an attempt to save their one-time colleague, Justice David Wiggins, from a similar fate this November.
The controversy, of course, centers on the ruling by the Iowa Supreme Court to overturn the legislature’s traditional marriage law and require the state to recognize gay marriages. The three former Supremes want Iowans to believe that opposition to this ruling is not a legitimate basis to dump Justice Wiggins. In legal terms, this is what is known as a crock.
As of last summer, 31 states had passed popular referendums and/or constitutional amendments banning gay marriage. Across the U.S., legalization of gay marriage has come only through judicial fiat, such as in Iowa. Opponents of gay marriage see these judicial intrusions as an abuse of power, with judges exceeding their authority by not only legislating from the bench but by overturning the centuries-old traditional concept of marriage. Judges who have upheld gay marriage, like the Iowa justices, believe these decisions are grounded in the state constitution.
In this dispute, someone has to decide who is right – and in Iowa that someone in the people. Browbeating voters by suggesting they have no right to remove judges who have abused their power is not about protecting judicial independence, it’s about imposing judicial imperialism.
October 1, 2012
“Merit” selection proponents used to never really talk much about retention elections – basically because they didn’t have to. Up until recently, voters could be counted on to dutifully retain the judges chosen for them by legal special interest groups like state bar associations and trial lawyer advocates. In fact, a study by Professor Larry Aspin of Bradley University found that of the 6,309 judges who stood for retention election between 1964 and 2006, more than 99 percent were retained. All that began to change in 2010, when formerly obedient voters rose up and threw out three activist Iowa Supreme Court Justices who had voted to overturn the state’s defense of marriage law.
That vote in Iowa sparked a panic among the “merit” selection gang – and a change of strategy. They began to advance a new theory about the purpose of retention elections – a Big Lie designed to intimidate voters and put them back in their place as a mere rubber stamp for the lawyer-controlled “merit” commissions. The latest iteration of this Big Lie comes from a member of the Iowa trial lawyers association:
“If a voter wants to vote not to retain a judge because the judge is not a good judge (ie repeatedly exhibits poor temperament, is biased, or never gets the decisions out in a timely fashion) so be it. But to vote not to retain a judge only because one does not agree with one controversial opinion that judge joined three years ago does nothing but throw out justice system under the bus.”
The truth is, voters have the right to dump a judge for any reason they want – not just because a judge is cranky in court or tardy in rendering decisions. The case of the three Iowa Supremes unceremoniously dumped in 2010 was not simply a matter of voters disagreeing with “one controversial opinion.” In the voters’ mind, that decision and others represented a commitment to judicial activism, judicial arrogance – a willingness of judges to exceed their authority, legislate from the bench, and indifferently overturn the will of the people and their elected representatives.
These are absolutely legitimate reasons to drop a judge – far more legitimate, in fact, than dismissing a judge who doesn’t get decisions out very fast.
September 7, 2012
One of the favorite tropes of the “merit” selection gang is that contributors to judicial campaigns are trying to “buy the courts.” Of course, it takes a great deal of chutzpah for organizations funded by a billionaire Wall Street speculator to accuse anyone of trying to buy anything … but we’ll leave that aside.
Still, when I read a Washington Post report this morning about an “all-hands-on-deck” meeting at the Democratic convention in Charlotte where senior White House advisors and Cabinet officials “met privately with millionaires and billionaires” to “cajole” them into fueling the Obama re-election effort, I wondered if there would be any outrage from the billionaire-backed gavel grabbers.
After all, shouldn’t these folks be equally troubled by the prospect of “senior White House advisor David Plouffe listen[ing] intently … as a billionaire donor sought his help for a proposed rule protecting captive chimpanzees” or another mega-rich donor “press[ing] him about White House action to protect same-sex couples”? Isn’t trying to “buy” the White House’s favor on these issues just as big a threat to democracy as a business owner who contributes to a state Supreme Court justice who winds up making pro-business rulings?
The usual answer from the “merit” selection crowd is that “judges are different.” It’s OK, they argue, for ordinary politicians in Congress, state legislatures, governors’ mansions and even the White House to sell out to would-be chimpanzee protectors – in fact, that’s what they are elected to do. But judges who accept contributions are instantly tainted and cannot render fair rulings if they have taken campaign cash.
This attitude reflects a warped view of what public service means in our American democracy. Every public servant – from the lowliest county courtroom to the White House itself – has a constitutional duty to protect the common good or what we once called “the public interest.” Legislators represent all the people, not just those who voted for them or contributed to their campaigns.
Governors and presidents must enforce the laws equally for all the people, not just chimpanzee admirers being hit up for dough. Likewise, judges interpret the law equally for all the people, regardless of whether they were placed on the bench through judicial elections or “merit” selection.
Accepting campaign contributions per se doesn’t make a public official less dedicated to the common good. The truth is, campaign donors typically contribute to legislative, executive and judicial candidates they feel are more likely to share their view of government. The quid pro quo that “merit” selection proponents assume comes with every contribution is merely a fiction designed to undermine judicial elections, which, from their standpoint, too often result in the seating of judges who don’t share their ideological preferences. Which is why you won’t hear any noise from the Soros crowd about senior White House officials huddled with billionaire donors discussing federal rules about chimpanzees.
September 7, 2012
Lewis Stein, former Chairman of the New Jersey State Bar Association’s Committee on Judicial and Prosecutorial Appointments and a member in good standing of the state’s legal aristocracy, unleashed a tirade on Governor Chris Christie the other day. Mr. Stein, who, by his own account, has “spent most of [his] professional life advocating for the rule of law to be administered by the most competent judiciary possible” has seen his good work “trashed for political purposes by the governor” – an “insidious and even dangerous aspect of his job performance” that has resulted in a “lasting debasement of respect for the rule of law.”
What offense against the judiciary – nay, against public decency – did Governor Christie commit? Well, “shortly after taking office, Christie announced he would not reappoint a Supreme Court justice.” One Supreme Court justice? Yep, that’s it.
But don’t think for a minute that Mr. Stein’s ire was raised over the fate of a single judge. No. Christie’s real offense was breaking down the door to the elite little clubhouse of New Jersey’s legal poo-bahs who rule the state’s courts. You see, in 65 years, according to the former Chairman of the New Jersey State Bar Association’s Committee on Judicial and Prosecutorial Appointments, the only way a judge ever lost his seat was “as a result of the judgment of the New Jersey State Bar Association and its judicial evaluation’s procedures.”
In other words, only members of the club are allowed to cast out a judge – not a mere governor. Christie’s only role in the process, according to Mr. Stein, is to dutifully rubber-stamp the choices of self-appointed, unaccountable legal insiders – like himself – with no questions asked, please.
Mr. Stein sourly admits that there is no provision in the New Jersey Constitution requiring the governor to bow to the will of a gang of unelected lawyers – a “notable weakness” in his view. But still! It was tradition! Well, as Condi Rice’s invitation to join Augusta National remind us … some traditions are made to be broken.
Mr. Stein calls Christie’s actions “intolerable” … but what’s really intolerable – or at least insufferable – is the insistence of people like the former Chairman of the New Jersey Bar Association’s Committee on Judicial and Prosecutorial Appointments that the courts are the private preserve of elite lawyers and other Bar cronies.
August 21, 2012
The “merit” selection gang always argues that retention elections are an effective way to keep judges accountable to the people. That is, until the people actually rise up and hold judges accountable; then the elites fly into a full-fledged panic and chastise voters for even thinking about not retaining a sitting judge.
The Iowa State Bar Association and its allies in the media sent a message to Iowa Supreme Court Justice David Wiggins that his “low-key response” to the campaign against him may not be sufficient to save his seat. The gavel grabbers at the George Soros-financed Justice at Stake have also joined in the hand-wringing.
The new line in Iowa and other states where voters seek to oust justices is that voting against a sitting judge because you don’t agree with his/her decisions is out of bounds. As I’ve written before, this is a crock. Voters have every right to dump judges who have grown arrogant and insulated from the people they serve. Let’s hope Iowa voters don’t yield to intimidation from the state’s legal aristocracy and the lavishly-funded Soros machine.
August 15, 2012
The New York Times repeats the canard that retention elections are “meant to weed out incompetent or corrupt judges.” This is becoming a favorite meme of elites trying to protect liberal, anti-business, activist judges from the wrath of voters. The whole idea is to intimidate voters into believing they have no standing to vote out a judge who engages in judicial activism and legislates from the bench, such as the Iowa justices who struck down the state’s traditional marriage law.
As I wrote yesterday (please see below), states have plenty of mechanisms in place to remove incompetent or corrupt judges. Retention elections serve an entirely different purpose. They are meant specifically to hold judges accountable to the people they serve. In American democracy, every public servant must ultimately be accountable to the people. Judges who are insulated from public accountability are more likely to exceed their limited judicial authority. Retention elections are a tool, albeit an imperfect one, for people to remind judges that they may be independent from the other branches of government, but they are not independent from the people – and voters should not be afraid to use it.
August 14, 2012
The Palm Beach Post joins the chorus of elite opinion makers who are terrified the people of Florida will rise up and dump three state Supreme Court justices under fire for activist decisions and for using state employees to help file election papers. Along with the usual hand-wringing, the editorial suggests that retention elections are “designed to remove judges because they are unfit to serve, not because people don’t like their rulings.” This is manifestly untrue.
There are ample mechanisms in place to discipline Florida judges for misconduct that are totally unrelated to retention elections. According to the American Judicature Society, Florida judges can be disciplined in several ways, including impeachment by the state House and conviction by the Senate or by a recommendation by the independent Judicial Qualifications Commission, which was established for the sole purpose of investigating misconduct by state judges. The Commission is responsible for investigating misconduct complaints and can recommend disciplinary measures ranging from a public reprimand to removal from office.
So if retention elections are not designed to pass judgment on a judge’s fitness for office, what exactly are they for? The obvious answer, which only legal elites and their media allies contest, is to hold judges accountable to the people they serve. Jesse Phillips, President of Restore Justice, puts it best:
“We have a voice in our court system. Nationally, we choose the president and members of the U.S. Senate and give them the ability to nominate and confirm judges. In Florida, we choose whether to keep judges based on their job performance …”
“The [Florida] court … has weakened its independence by adopting legislative power, enacting policies not vetted by accountable, elected officials that go beyond what the Florida Constitution says….Accountable judges may think twice before interfering with the legitimate business of the people that we actually elect.”
When editorial boards or members of the legal aristocracy claim that judges can only be removed for corruption or misconduct, what they’re really trying to do is to bully voters into keeping activist judges on the bench. The real threat to judicial independence comes from activist judges, not from the people who are trying to hold them accountable.