Judges or Jelly Beans?
February 3, 2012
In a must-read column, George Will catalogues the way governments impose restrictions on political speech that is troubling or inconvenient to the people in power. As Will points out, the clarion cry of speech restricters is the need to get “money” out of politics – a refrain we constantly hear from the $45 million+ “merit” selection campaign. He then deflates this hot air balloon by noting that the $2 billion expected to be spent on this year’s presidential race (about six times more than was spent in 2000) represents about the same amount as Americans spend on Easter candy.
In the interest of deflating more hot air, I’d point out that spending on Easter candy outpaces the amount spent on judicial campaigns for the entire decade from 2000-2009 by a factor of 10. In the 2009-2010 election cycle, judicial candidates raised about $27 million — about 75 times less than was spent on jelly beans and chocolate bunnies. This is the crisis we’re supposed to get all worked up about?
Meet James Bopp
January 20, 2012
The left-wing American Prospect has a long profile on James Bopp, a tireless leader in the battle to overturn restrictions on free speech in elections, which typically masquerade as “campaign finance reform.” Bopp is best known for filing the suit that resulted in the landmark Citizens United decision, but he also played a key role in Republican Party of Minnesota v. White – the 2002 U.S. Supreme Court ruling that lifted prohibitions that barred judicial candidates from discussing … well, pretty much anything. While the article tars White and Bopp for “the escalation in money, TV ads, and vitriol in recent judgeship races,” Bopp makes the more compelling, common sense point that it is “quite legitimate for people to want to know and take into account and vote against judges who they believe are not using the right values.”
Here, in a nutshell, you have the difference between proponents of “merit” selection and supporters of judicial democracy. The left-wing “merit” selection crowd believes judges should never deign to explain their reasoning to ordinary voters. Most voters are not sophisticated enough to understand the complexities of judicial reasoning anyway, so judges must be shielded from having their words or opinions become the stuff of “vitriol” or, heaven forbid, a TV ad. Those of us who believe in a more democratic judiciary trust that voters can weigh various sources of information about judicial candidates and separate out the important from the demagogic. We put our faith behind ordinary people in the voting booth, not legal elites who hide behind closed doors to decide who will rule us from the bench.
Although the profile is critical, you can’t help but notice a grudging respect for Bopp’s effectiveness at fighting for his beliefs.
Keep fighting for the people, James!
Are Alabamans Too Stupid to Choose Their Judges?
January 17, 2012
This seems to be the line Justice at Stake is peddling, calling judicial elections “an exercise in blindfolded democracy” and arguing that elections basically amount to “pulling names out of a hat.” The Birmingham News has dutifully picked up on the idea and proposes doing away with elections altogether and “have judges at all levels appointed in a fair process that considers qualifications and legal experience most of all.”
Two comments seem relevant here. First, as former Michigan Supreme Court Chief Justice Clifford Taylor has tirelessly pointed out, the idea that under “merit” selection, nominating commissioners sit around poring over law school transcripts in search of the judicial candidate who got an A+ in Contracts rather than an A- is grossly misleading at best and an outright falsehood at worst. Imagine a commission evaluating the qualifications of Antonin Scalia and Stephen Breyer. For all intents and purposes, their qualifications are identical. So when choosing between a Scalia and a Breyer, the decision for President Reagan and President Clinton came down not to qualifications, but to which judicial philosophy each felt best serves the Constitution. Judicial Nominating Commissions make their recommendations based on the same biases and preferences – only they are not accountable to anyone for their decisions.
The second point is that doing away with elections because a handful of elites believe ordinary citizens are not educated enough about their choices puts us on a very slippery, anti-democratic slope. Should we end voting for school board because we don’t think people really “understand” what it takes to run a school effectively? What does the average person know about the latest academic research on law enforcement – and how can they vote intelligently for their local sheriffs without it? Alabama had a long and undistinguished history of using “literacy tests” to make sure people were “qualified” before they were allowed to vote. Is that really a legacy the “merit” selection crowd wants to embrace?
In American democracy, the right to vote for our public servants is not a privilege granted to those deemed worthy by some editorial writer or some Bar Association honcho or some flak for a billionaire who wants to push our courts sharply to the left. And it’s not conditional on the reason we choose to vote for a certain candidate – or whether elites thinks it’s a good reason or a bad one.
U.S. Chamber of Commerce Plans Push on State Supreme Court, AG Races
January 13, 2012
The U.S. Chamber of Commerce plans a “major effort” on state Supreme Court and Attorneys General elections this fall – a welcome signal that America’s leading business group will be fully engaged on races that are critical to promoting tort reform and reining in activist judges and AGs. The news came in Chamber President Tom Donohue’s annual State of American Business address. The organization I run, the American Justice Partnership will also be active in key races, supporting Supreme Court and AG candidates who believe judges should interpret the law, not legislate from the bench. Together, AJP and the Chamber’s mutual efforts are making a difference in advancing the rule of law and ensuring judicial accountability.
A Cry for Judicial Accountability
December 19, 2011
Justice at Stake’s Bert Brandenburg takes GOP presidential candidate Newt Gingrich to task for his attack on federal courts, including a threat to arrest judges in order to compel them to justify controversial rulings. Bombastic? Surely. Over the top? Absolutely – and I have no interest in defending Gingrich’s proposed “solution” to the problem.
But Brandenburg’s main complaint against Gingrich – “Americans want courts that can uphold their rights and not be accountable to politicians” – misses the point. The real problem with activist judges today – and the reason Gingrich’s attack is winning applause among the conservative rank and file – is not that judges aren’t accountable to politicians, but that they increasingly believe they are not accountable whatsoever to the people they serve.
There are ample cases in our history to show that activist judges who consistently trample on the prevailing values of the people often elicit a political reaction by whatever means are available to restore the proper balance between the three branches. Witness the decision by Iowa voters last November to dump three Supreme Court justices for overturning the state’s defense of marriage bill – legislation that was overwhelmingly endorsed by the people and adopted by the democratically-elected legislature. Or the fact that a federal court ruling to ban the words “prayer,” “amen,” “invocation,” or “benediction” from high school graduations has become a hot campaign issue.
The obvious response is that judges must remain independent, without concern about making unpopular decisions. This is true as far as it goes. But independence is not the only virtue our Founders sought for the judiciary – they also believed that judges must be accountable. This is why the lifetime tenure provided to federal judges is balanced by judicial nominations that originate from an elected president and require confirmation by elected Senators. It’s why many states continue to select judges through democratic judicial elections. And it’s why Brandenburg’s efforts to promote “merit” selection – where judges are chosen by an unelected, unaccountable commission that is dominated by special interest groups and meets in secret – can never win much popular support.
“Merit” Selection Proponents Don’t Let Facts Get in the Way
June 27, 2011
Judge Jack Zouhary offers a lame rebuttal to a recent article by University of Pittsburgh Professor Chris Bonneau, who marshaled real empirical evidence, including analysis of court opinion and campaign spending patterns, to demonstrate that democratic judicial elections are not a threat to democracy. Judge Zouhary responds with … a couple public opinion polls dating back to 2001.
As an undoubtedly distinguished jurist, Judge Zouhary must be unaware that many of the polls he cites were paid for by George Soros’ $45 million campaign to fundamentally change our courts and promote “merit” selection. He also must have missed a recent Rasmussen poll that found that 65 percent of Americans think judges should be elected. Or a 2008 American Justice Partnership poll which found that only 21 percent of Americans favored “merit” selection for state judges, compared to 75 percent who favored elections. (Full disclosure: I run the AJP.)
Yet in Judge Zouhary’s mind, the evidence doesn’t really matter. As he candidly put it, “Public perception that justice is ‘for sale’ is damaging to the courts – whatever the reality.” (my emphasis) In other words, the facts are meaningless – it’s only the perception that counts.
The judge’s little obiter dicta gives away the entire “merit” selection strategy. A lavishly-funded group like Justice at Stake swoops into a state and makes a lot of noise about the “danger” of campaign money judicial elections. They roll in an eminence grise like Sandra Day O’Connor to decry the “threat” to judicial independence. They visit local editorial boards, which dutifully parrot the party line. Then, after this carefully orchestrated campaign, they take a poll that shows – low and behold – people are suddenly, magically concerned about the judiciary. The only answer? Take away the peoples’ right to vote and let legal elites pick judges!
It’s all very neat and tidy: spend millions to create a perception problem and then offer up a “solution” that just coincidentally pushes courts in your preferred ideological direction. The problem is, voters don’t really buy the argument that they’re the problem. That’s why they keep pushing back against “merit” selection in states like Tennessee, Missouri and Arizona, defeating “merit” selection ballot initiatives in states like Nevada, and demanding that judges be held accountable in states like Iowa.
It’s the People’s Fault!
June 23, 2011
The American Constitution Society held a little gripe-fest last week to discuss the problems with state courts. The verdict: It’s the peoples’ fault! Specifically those pesky voters who keep meddling in the judicial selection process. “The system has changed,” lamented former Indiana Supreme Court Justice Myra C. Selby, “It starts not with judges or lawyers, but with the average Joe and his understanding of what the judiciary is all about.”
It’s not too hard to read between the lines here. Judicial selection was rolling along great as long as it was a clubby, insiders’ game for legal elites. But then all those average Joes crashed the party! Imagine that! Voters actually believe their public servants should be held accountable. What an outrage.
The American Constitution Society is paid by George Soros’ Justice at Stake organization ($5.85 million between 2002 and 2008), so it’s not surprising to hear them parroting the meme about politics (i.e. the people) interfering with the judiciary. Fortunately, former West Virginia Chief Justice Richard Neely was there to bring a little democratic common sense to the proceedings. Said Neely, “The problem I see is that judges aren’t listening to the arguments of the people with whose values they disagree. Part of it is the failure of the courts to take into consideration that sometimes they are deciding cases that are highly debatable and they are making law.”
In other words, judges can’t act like legislators one minute, then retreat behind their black robes and claim they’re above politics the next. When judges arrogate to themselves the power to make law, rather than simply interpret the law, the average Joes need to step in and hold them accountable.
Taylor Demolishes O’Connor at “Merit” Selection Event
June 16, 2011
While Sandra Day O’Connor’s “merit” selection powwow at Wayne State University earlier this week was heavily stacked with anti-election activists, former Michigan Chief Justice Clifford Taylor managed to crash the party, delivering a thoughtful, measured speech that ruthlessly demolished the arguments behind “merit selection.” It’s important reading for supporters of democracy in judicial selection, and I’ll try to get a link to the full speech, but here are some highlights:
- All Judicial Selection Methods are Political: “Any state appellate court judicial selection method – gubernatorial appointment with or without legislative confirmation, partisan or non-partisan election or the currently hyped and cleverly named, merit selection – can and does create the potential for the selectee to feel, or be perceived to feel, beholden to the selector.” Read more
O’Connor to Preside over Kangaroo Court in Michigan
June 2, 2011
Former U.S. Supreme Court Justice and current “merit” selection uber-lobbyist Sandra Day O’Connor is headed to Michigan, where she’ll preside over a Kangaroo Court known as the Judicial Selection Task Force. The task force is supposed to be objectively “studying” ways to improve judicial selection in Michigan, but the guest list is anything but nonpartisan.
The forum – to be held at Wayne State University Law School on June 14th – is heavily stacked with political hacks like former Michigan Democratic Party chair Mark Brewer and groups like the National Center for State Courts, which has raked in over $1.8 million over the last decade as a charter member of the George Soros-bankrolled campaign to end democratic judicial elections. With her heavy politicking on behalf of “merit” selection, Justice O’Connor herself gave up any pretensions to impartiality. Last fall, O’Connor was embarrassed after her voice was used to make robo-calls to Nevada voters in an unsuccessful attempt to impose “merit” selection in that state.
Yes, former Michigan Supreme Court Chief Justice Clifford Taylor has been invited as a token representative in support of democratic judicial elections. However, the Judicial Selection Task Force is doing everything possible to muzzle this point of view. Insiders tell me that O’Connor and task force director Justice Marilyn Kelly are refusing to allow a recording of the event, and public access is strictly limited. Sounds a lot like “merit” selection itself – where legal elites meet behind closed doors to pick judges and the public is shut out. So much for the free and objective exchange of ideas.
Speaking Up for Democratic Judicial Elections
June 1, 2011
“Without a mechanism for effectively holding judges accountable, judges are free to ‘go rogue’ and make decisions based solely on their political views,” argues University of Pittsburgh Political Science Professor Chris Bonneau in a powerful piece in the Washington Post. What’s the best way to ensure judges are accountable to the people they serve? While conceding that “no method is perfect,” Professor Bonneau rightly points out that democratic elections “are at least transparent processes open to the public” – unlike “merit” selection.
After surveying the empirical evidence, Professor Bonneau dispatches the foundational myths of the “merit” selection campaign. First, “there is no evidence that elections cause voters to view judicial institutions as less legitimate.” Second, “there is no difference, other things being equal, in the quality of judges who emerge from elections as opposed to appointments.” Third, “campaign spending makes elections more competitive” and “provid[es] voters with a meaningful choice.” Fourth, “there is no proof that elections judges are for sale” and “no systematic evidence to date that judges’ votes are influenced by campaign contributions.”
In response, Bert Brandenburg – head of the George Soros Center for Undemocratic Courts (aka Justice at Stake) – writes that Professor Bonneau skipped over “important data that justice could be for sale.” Specifically, Brandenburg cites the fact that spending on judicial elections is “shattering records” and that “much of this money comes from lawyers and interested groups who appear before these candidates in court.”
These observations raise a couple interesting questions. First, is Brandenburg completely unaware that spending levels in every election have been “shattering records”? In the 2008 presidential election, the candidates spent over $1.7 billion – as much all the candidates spent in the six presidential elections between 1976 and 1996, with enough left over to win a couple House seats. (Thanks, as always to OpenSecrets.) Rising spending on judicial elections is not an alarming anomaly, but simply part of a broader trend. Or perhaps Brandenburg will soon propose choosing presidents by “merit” panels rather than through democratic elections.
Second, if Brandenburg is worried that campaign contributions by “lawyers and interested groups” give these folks outsized influence over judges, his proposed solution will only make the problem worse. Under “merit” selection, lawyers won’t just have a front-row seat in the judicial selection game, they’ll be inside the dugout deciding who plays and stands behind the plate calling balls and strikes. Since legal elites and legal special interests invariably control “merit” selection panels, Brandenburg’s answer to lawyers having too much influence is to give them more influence.
Voters instinctively understand that the arguments for “merit” selection are incoherent and undemocratic – which is why they’ve been largely immune from politicking by Sandra Day O’Connor and other “merit” selection lobbyists. Professor Bonneau is right: Judicial elections may not be perfect, but they are the voters’ best defense against an arrogant, imperial judiciary and the best assurance of an open, transparent judicial selection process.