“Busting The Monopoly On Judicial Selection” In Tennessee
June 15, 2009
“The lawyers who have dominated judicial selection are getting put back in their place,” says a Wall Street Journal editorial today about the moves the Tennessee legislature took last week to modify the state’s so-called “merit” system for selecting judges. The new system takes the power of choosing who sits on the judicial nominating commission away from legal special interests and gives it to elected officials. That reform, along with requiring the commission to come out from behind closed doors and meet in public, is “a good first step toward bringing transparency and accountability to those judging the judges.”
As I wrote in my June 2nd post, a critical test was whether the legislature adopted a proposal in the Senate bill which would have allowed the governor to reject two slates of the commission’s nominees and choose any qualified judicial candidate. While this reform was stripped out of the final version, the Journal argues it should be reconsidered when the legislature takes up Round 2 of fixing Tennessee’s broken judicial selection system:
“In its best incarnation, a judicial commission is designed to serve a useful editing function, providing a short list of desirable candidates for the Governor, similar to the way staffers might under a federal system. When it’s dysfunctional, the Governor should be allowed to take the reins.”
This is right, of course, but the real solution can be found in Tennessee’s Constitution, which gives the power to choose judges to the state’s voters. Nevertheless, Tennessee’s reform effort clearly signals a deep dissatisfaction with elitist schemes to elevate special interests above the people when it comes to deciding who will have the honor of serving the public on the bench.
Update: In addition to today’s editorial on Tennessee , the Wall Street Journal editorial page kept the judicial election faith over the weekend by praising the failure of some nasty anti-tort reform legislation in Texas. (A Ten Gallon hat tip to ATRA and TCJL)
Tennessee Weakens Judicial Star Chamber
June 2, 2009
Tennessee’s governor will have more power over judicial nominations and legal special interests will have fewer seats on the state’s judicial nominating commission. The changes come following votes in the House and Senate to extend the commission through 2012, reports the Tennessean.
Both the House and Senate versions allow the governor to reject the commission’s first slate of nominees and ask for a new one. But the Senate bill has a provision with the potential to break the trial bar’s strangle hold on the judicial selection process. Under its version, the governor can reject both slates and then choose any qualified applicant – a compromise I first proposed here on April 11. This would make the elected governor fully accountable for judicial choices and judges themselves accountable, albeit indirectly, to the people. Allan Ramsaur, executive director of the Tennessee Bar Association, says both versions are OK with him, which should provide enough political cover for House members worried about offending the state’s legal poo-bahs.
Vanderbilt University Law Professor Brian Fitzpatrick noted the significance of this small, but crucial difference:
“No state with a merit system has ever taken the power to select judges away from the commission and given it back to an elected official.”
While both bills cut the number of lawyers on the 17-member panel from 14 to 10, lawyers will still hold a majority – a step in the right direction, but a move unlikely to quiet supporters of democratic elections (like me) who believe special interests have far too much power to pick judges.
Judgesonmerit.org – which has spent 20 years lobbying to revoke the constitutional right of Pennsylvanians to elect their judges – is publicly clucking over this “victory,” but they must privately realize the case for selecting judges in secret by unelected, unaccountable tribunals controlled by legal special interests has been dealt a significant (if not yet fatal) blow.
The Battle Continues In Missouri
May 13, 2009
Better Courts for Missouri has launched an ad campaign calling for the legislature to pass HJR 10 – a measure designed to make the judicial selection process in Missouri more transparent, more accountable and less subject to special interest pressure. You can watch the ad here.
Elitist legal groups are pulling out all the stops to block HJR 10 and keep Missouri citizens in the dark about how their judges are picked and preserve what they’ve come to consider their divine right to decide who rules in our courtrooms. Whether they succeed or not, legal elites are clearly on the defensive. HJR 10 has put a permanent crack in the foundation of “merit” selection by exposing the absurdly anti-democratic nature of this system. Here’s a quick scorecard of the two sides in this debate:
- Proponents of HJR 10 want to apply Missouri’s Sunshine Law to the state’s judicial selection commission. Opponents believe the commission should continue meeting in secret.
- Proponents of HJR 10 want ordinary citizens to have a more prominent say in deciding who will control one-third of their state government. Opponents believe a single special interest group (lawyers) should keep picking judges.
- Proponents of HJR 10 want to increase accountability for judicial selection by requiring prospective judges to be confirmed by the Senate and allowing the Governor to pick from any of the qualified candidates, not just from the hand-picked list put together by lawyers. Opponents believe the judicial selection commission should be accountable to no one.
Even a die-hard Missouri Plan supporter like former Supreme Court Justice Sandra Day O’Connor has endorsed a key provision of HJR 10, telling a group of Missouri law students back in March “you can’t have secret proceedings.” Apparently even this mild concession to transparency is too much for judicial selection star chambers to bear. I guess they figure if ordinary citizens see how lawyers are gaming the system to pick judges of their choosing, they might actually demand the restoration of their right to vote for judges in democratic elections. The horror!
Are Pennsylvanians Really Too Stupid To Elect Judges?
May 12, 2009
The Philadelphia Inquirer is out with a slate of judicial endorsements, but not before trashing the idea that judges should be chosen by the people through democratic elections. Voters, the editors grumble, “may well apply the usual uninformed criteria” when deciding who to put on the bench. (And these are the same folks who sit around scratching their heads wondering why newspapers are losing readers in droves – to bloggers, no less – and filing for bankruptcy.)
Judgesonmerit.org – part of the national campaign bankrolled by hedge fund billionaire George Soros to let legal special interests pick judges – also has a post highlighting the “flawed election process” that permits mere citizens to determine who will control one-third of Pennsylvania’s state government.
So what “informed” criteria does the Inquirer use to persuade voters about the merit of the candidates it’s endorsing? Well, one candidate, the Inquirer tells us, is the “the city’s ‘only openly gay judge’ and strives to keep all bias from his courtroom.” Another is a “distant cousin” of a jailed former City Council member who is recommended in part because of his “charitable works.” Yet another “served as chief of staff to his City Council president father and ran a bank branch” before turning to the law.
These prospective judges may well be fine, upstanding citizens who would be a credit to the bench. But is the Inquirer’s reasoning really so superior that the paper’s readers should cower at the thought of approaching local polling places with their “uninformed” opinions? Is it really any less arbitrary than the biases an ordinary citizen would bring to the voting booth?
Ah, but the Inquirer’s choices have all been vetted by the Philadelphia Bar Association, which should be a “major deciding factor” in voters’ decisions. Now we get to the heart of the matter. “For now,” the Inquirer writes, “voters have the first and last word” on choosing judges. That ominous “for now” is a plea for an end to democratic judicial elections. In the perfect world envisioned by the Inquirer and judgesonmerit.org, groups like the Philadelphia Bar Association and other legal special interests would be given a privileged position in deciding who should sit on the bench. In fact, the Inquirer and judgesonmerit.org are so infatuated with the views of lawyers they want to remove voters from the process and turn the whole job of picking judges over to legal elites.
Unfortunately, from their perspective, to reach this nirvana of lawyer-selected judges they need to revoke the Constitutional right of Pennsylvanians to choose jurists democratically. They’ve been pushing that rock up the hill for about 20 years, so far with little success. So “for now” democracy reigns in Pennsylvania and the people still have the right to pick their public servants on the bench.
More Lobbying By Judges In Tennessee
April 29, 2009
With just 62 days until Tennessee’s “merit” selection system expires, blogger Terry Frank has been monitoring the ongoing lobbying activities of several sitting judges, including members of the Supreme Court, who are using their offices to try to defeat legislation that would make judges more accountable and the judicial selection process more transparent. Ms. Frank notes that Canon 2 Sec. B of Tennessee’s judicial Code of Conduct requires that judges not “lend the prestige of judicial office to advance the private interests of the judge or others;” And:
“As Holder, Koch, Wade and Kirby are all sitting judges with a stake in the legislative outcome so to speak, are they lending the prestige of their office to advance what will benefit them personally? It looks like it to me.”
Sec. B also says “judicial letterhead must not be used for conducting a judge’s personal business.” While Ms. Frank agrees that judges have First Amendment rights like anyone else:
“ … they [Justices Koch and Holder] have clearly used their positions to lend greater weight and authority to their opinions regarding passage of this particular legislation. So have Justices Kirby and Wade by denoting their titles/positions on their letterhead.”
Wait a minute – aren’t judges in Tennessee chosen by “merit” selection? And doesn’t “merit” selection ensure that judges will remain cool, aloof, serene … floating above the political fighting and grubby lobbying that consume lesser public servants? Guess not.
NAACP Says “Specter Of Racial Discrimination” Has Been Raised By Florida “Merit” Board
April 28, 2009
Did Florida’s judicial nominating commission discriminate against minority candidates after bypassing three “well-qualified” African Americans to fill a vacancy on the state’s Fifth District Court of Appeals? Florida’s NAACP is certainly concerned. In a blistering Amicus Brief filed with the Florida Supreme Court, the NAACP charged that “the specter of racial discrimination has been raised” by the commission’s actions and argued that the commission’s secret deliberations “fail to provide any measure of accountability in the event of misconduct or discrimination.”
Explosive charges indeed – and yet another example of how “merit” selection schemes have failed to keep politics out of judicial selection, while turning the process of picking judges into a clubby, insider’s game with no public oversight.
A good summary of the battle du jour can be found in the Orlando Sentinel, but here’s the gist: Back in December, the Fifth Judicial Nominating Commission sent Gov. Charlie Crist a list of six nominees that failed to include any minority candidates. Gov. Crist asked the commission to reconsider its list given its professed commitment to diversity on the bench, noting that at least three well-qualified African Americans had applied, including two sitting circuit court judges. The commission has refused and the retiring judge whose vacancy must be filled wants the Florida Supreme Court to order Gov. Crist to pick a name from the original list.
While the governor can suspend a commission member for misconduct (like discriminating against African American nominees), this is a useless check against abuse because the governor is locked out of the smoke-filled room along with everyone else. As the NAACP put it:
“At present, the Governor has no authority to access information with respect to potential misconduct or discrimination by the JNCs to aid in his determination as to whether suspension or removal is warranted…. Accordingly, the Florida NAACP respectfully requests that this Honorable Court exercise its Article V powers and amend the JNC rules of procedure to allow a governor to obtain the requisite documents and transcripts to investigate misconduct or discrimination within the nominating process.”
In Tennessee, Missouri and now Florida, proponents of government transparency and public accountability are pushing for judicial nominating commissions to come out from behind closed doors. After being called out by the Florida NAACP, isn’t it time for even the most diehard “merit” selection advocates to give up on the idea that our judges should be chosen in secret?
“Merit” Selection And The Founders
April 24, 2009
Former Supreme Court Justice Sandra Day O’Connor was campaigning in Indiana for “merit” selection earlier this week. Justice O’Connor dismissed the idea that judges should be chosen by the people through democratic elections and trots out the Founding Fathers in support of her cause:
“Our forefathers would be surprised to find they were establishing a tyrannical system when they wrote the Constitution.”
In making this comparison, Justice O’Connor seems to be arguing that “merit” selection is somehow analogous to the federal system of selecting judges. But is this a fair analogy?
Federal judges are chosen by a President who is accountable to the people and confirmed by Senators also accountable the people. Public opinion about everything from the proper role of judges to the judicial philosophy that should guide the decisions of federal judges is so important that presidential and senate candidates devote entire speeches and policy papers to assuring voters their wishes will be taken into account.
Judges who reach the court under “merit” selection, on the other hand, are typically chosen by a small committee that is accountable to no one and is dominated by a single special interest group (lawyers). Neither the state’s governor nor senators can be held responsible by the voters for the ultimate selection because they are bound by the choices of the committee, so the pick isn’t theirs. Judicial selection commissions typically meet in private, making the process even less transparent and less accountable. Once on the bench, judges are “retained” in potemkin elections at rates that would make the old Soviet Politburo members blush.
The Founders believed that judges should be independent, but also accountable, which is why they didn’t concoct a system as undemocratic as “merit” selection. As James Madison wrote in Federalist 39:
“It is essential [Madison’s emphasis] to such a government [a democracy] that it be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it….It is sufficient [Madison’s emphasis] for such a government that the person’s administering it be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
If the federal system was truly analogous to “merit” selection, federal judges would be chosen by a secret committee chosen by lawyers from interest groups like the American Trial Lawyers Association and the American Bar Association; the President would be bound to choose from the list of nominees anointed by the committee; and Senators would have no confirmation role whatsoever. Viewed in light of Federalist 39, it seems plain that “merit” selection – where judges are chosen not by the “great body of society” (i.e. the people), but by “an inconsiderable proportion, or favored class of it” (i.e. a tiny committee of lawyers) – is exactly the type of system the Founders wanted to avoid.
Elite Legal Special Interests Reasserting Power Over Judicial Appointments
April 21, 2009
A study documenting the bias by the American Bar Association against conservative judicial nominees – the subject of a March post on American Courthouse – is getting national attention in the wake of the Obama Administration’s decision to “restore the [ABA] to pre-eminence in federal judicial vetting.” A Wall Street Journal editorial sums up the findings of Richard Vining of the University of Georgia, Amy Steigerwalt of Georgia State University and Susan Smelcer of Emory University:
“Looking at federal appellate nominees between 1985 and 2008 across the ideological spectrum, the study found that the most liberal nominees had a 62.3% chance of receiving a ‘well-qualified’ rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees….Nominees in the Clinton Administration were 14% more likely to get the ABA’s highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.”
Like “merit” selection schemes at the state level, ABA vetting of federal judicial nominees gives elite legal special interest groups a privileged role in determining who controls America’s courts. Little wonder then, as the Journal reports, the ABA is pushing a version of “merit” selection at the federal level. Anyone want to guess which group would likely get to decide which judges have enough “merit” to be nominated to the bench?
Reform Efforts Gather Momentum In Missouri
April 20, 2009
A Wall Street Journal editorial picks up on the news that legislation to make Missouri’s judicial selection process more transparent and less influenced by special interest groups passed the state House last week. For more info on reform efforts in Missouri, read my previous posts here and here.
As the Journal correctly points out, letting a committee dominated by trial lawyers meet behind closed doors to decide who controls the courts has failed to take politics out of judicial selection in Missouri – unless you think handing control over to one political party is the essence of nonpartisanship.
The failure of “merit” selection – a system where an elite star chamber of lawyers gathers in secret to anoint judges – has also led Tennessee to look for ways to make judicial selection more democratic (that’s with a small “d”). Political leaders are beginning to recognize that shifting the power to select judges from voters to trial lawyers—who only want to pad their wallets—isn’t a great economic strategy:
“The continued reign of a judiciary chosen by trial lawyers and Democratic partisans is showing signs that its time has passed. For states looking to save their economies from tort-lawyer pillage, reducing the power of lawyers to dictate judicial selection would be a start.”
The Tennessee Plan Has Failed To Remove Politics From Judicial Selection
April 14, 2009
Vanderbilt University Law Professor Brian Fitzpatrick has a new study out through the Federalist Society that absolutely shreds the argument that “merit” selection removes politics from the judicial selection process, as it proponents always claim. Professor Fitzpatrick examined every nomination by Tennessee’s judicial selection commission between January 1995 and July 2008. Read the whole report, but there are some highlights:
- Between 1995 and 2008, the commission nominated “twice as many appellate judges more affiliated with the Democratic Party (67%) than with the Republican Party.”
- The sharp political tilt in nominations is not matched by Tennessee’s voters. “Although 67% of the Tennessee Plan appellate nominees between 1995 and 2008 were more affiliated with the Democratic Party, during the same time period Democratic candidates for the state House received only 51% of votes and Democratic candidates for Tennessee’s federal House delegation received only 49% of votes.
- Regardless of whether the governor was a Democrat or Republican, the majority of nominees the commission sent were more affiliated with the Democratic Party.
Professor Fitzpatrick notes that the Tennessee Code itself makes it clear the entire purpose behind the Tennessee Plan is to “make courts ‘nonpolitical.’” But if “merit” selection is failing to achieve this goal – as it clearly is – what exactly is the Tennessee Plan accomplishing? Here, again, Professor Fitzpatrick provides the answer: Turning judicial selection over to special interest groups.
By law, 14 of the 17 members of Tennessee’s nominating commission must be lawyers. By law, 12 of those 14 are chosen by one of five legal special interest groups, including three from the Tennessee Trial Lawyers Association. Says one commentator quoted by Professor Fitzpatrick: “merit selection does not take politics out of the judicial selection process….It substitutes bar and elitist politics for those of the electorate as a whole.”
Without legislative action, the Tennessee Plan will expire in 77 days. Since proponents of the plan can no longer make the case that the Tennessee Plan removes politics from the judicial selection process, exactly what is the rationale for continuing to deny the citizens of Tennessee their Constitutional right to select the judges who will control one-third of their state government?