Dueling Polls…Or Would A Judge Sell Out for $304?
February 2, 2010
“The public wants cash out of the courtroom – and that could mean pushing out elections, too.” So concludes an article in the Texas Tribune, citing as evidence a poll conducted by Justice at Stake which found that 84% of Americans believe judges should not hear cases from major contributors and 74% believe campaign contributions have some impact on a judge’s decisions.
But the leap the Texas Tribune makes from these manufactured survey findings to the conclusion that Texas should abolish democratic judicial elections is a clanking non sequitur.
A 2008 poll by the American Justice Partnership Foundation found that 75% of Americans believe state Supreme Court judges should be elected and only 21% supported so-called “merit” selection. Even a poll released by the staunches of “merit” selection supporters – the American Bar Association – found that only 19% of Americans wanted to turn judicial selection over to “merit” boards.
In that same article, the Texas Tribune publishes contributions by employees at top law firms between 2000 and 2009. Over that time period, 1,103 individual contributions were made at an average of $304. Even Texas Supreme Court Chief Justice Wallace Jefferson – a staunch “merit’ selection supporter – had to admit that “most judges don’t sit down at night and go over the list as to who contributed and who has not contributed to their campaign.”
The real problem, then, isn’t the fact that judges are changing their votes to please contributors, because Chief Justice Jefferson agrees they aren’t – at least not for $304. Instead, all we’re really dealing with is a problem of “public perception.”
If the public is wrong in their perception – as Justice Jefferson seems to believe – then isn’t the answer to better educate the public about the virtues of its judges, rather than punishing the public by eliminating their role in judicial selection altogether?
Baltimore Sun OpEd: Gansler Merit Proposal
February 2, 2010
On Friday, the Baltimore Sun published an oped I wrote in response to a recent proposal by Maryland Attorney General Doug Gansler. Gansler is pushing to replace the democratic election of circuit court judges in Maryland with merit selection and retention elections.
Gansler argues his plan “offers [voters] a tool to hold the judge accountable.” But as American Courthouse readers know, such a scheme merely puts legal elites in charge of picking judges and assures a virtual lifetime appointment to the bench.
Citizens United: “No Factual Basis” for a Stampede of Campaign Spending
February 1, 2010
Law.com has an interesting round-up from last week’s Georgetown University Law Center’s conference on judicial elections. Georgetown is a major recipient of George Soros $$ ($4.3 million between 1999 and 2006 to prop up Justice at Stake). So it was no surprise the conference highlighted the usual boilerplate about why it’s a threat to democracy to allow people to vote in judicial elections – especially after Citizens United.
But the conference also squeezed in Washington election lawyer Jan Baran, who countered the hysteria with some actual, real-live facts. According to Baran:
“26 states already have no limits on corporate spending in state campaigns – and their elections are not that different from those that restrict corporate participation.”
Baran also wrote in a New York Times op-ed:
“There is no factual basis to predict that there will be a ‘stampede’ of additional spending.”
That won’t sit well with the “merit” selection crowd, which is trying to use Citizens United to pressure states into abandoning democratic judicial elections. But it should be a flashing red light to state legislatures that might consider revoking the right to vote for judges in their states.
An AHA! Moment
January 29, 2010
Opponents of democratic judicial elections held a confab earlier this week at Georgetown Law School featuring – surprise, surprise – former U.S. Supreme Court Justice Sandra Day O’Connor, who has become something of an Empress Dowager to the “merit” selection crowd, popping up to speak from time to time, always earning low bows from the assembled courtiers. (Gavel Grab reported on the event here.)
Justice O’Connor had little new to add to the debate, other than that after the Citizens United ruling now we’ve really, really got to stop people from voting for judges. To me, by far the most interesting statement came from Bert Brandenberg, head of the George Soros Center for a Non-Democratic Judiciary (otherwise known as Justice at Stake), when he raised the issue of judicial recusal standards:
“Recusal is a battle for the soul of the judiciary 20-30 years from now.”
I realize this may not be an aha! moment for everyone, but it confirmed what I’ve been saying for weeks, which is that recusal standards have become a back door way for liberals to try to marginalize conservative judges and shape the composition of our courts, at least in certain cases.
More on Wisconsin’s Recusal Standards
January 22, 2010
Our friends over at Justice at Stake and the Brennan Center are huffing and puffing because the Wisconsin Supreme Court decided not to adopt a recusal standard proposed by special interest groups that would have triggered an automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. Instead, the Wisconsin high court ruled that campaign “donations, endorsements or independent spending around elections are not enough to force judges off cases.”
JAS and Brennan believe the decision is in “clear conflict” with the U.S. Supreme Court’s Caperton ruling. I guess we’ll find that out during the litigation scrum that is sure to follow. What is abundantly clear is that recusal standards have become a back door way for special interest groups to try to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
In Wisconsin, the process heated up after voters unceremoniously dumped former liberal Justice Louis Butler. Since then, special interest groups have failed to replace democratic judicial elections with “merit” selection – where lawyers, rather than voters, choose judges. Now they’ve failed in an attempt to use recusal standards to hinder the ability of voters to exercise their First Amendment rights by contributing to the candidates of their choosing.
Those First Amendment rights got another boost yesterday when the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (or labor unions for that matter, “are entitled to the same right that individuals have to spend money on political speech for or against a candidate.”
I can already hear the predictable howls of protest that corporations will now be free to “buy” any public office they want, including judgeships. The proposed solution will be just as predictable: Instead of having gullible, easily misled voters pick judges, let’s turn the job over to a small group of elites – all of whom, it goes without saying, are smarter than mere citizens anyway.
The O’Connor Judicial Selection Initiative: Rule by Elites or Rule by People?
December 11, 2009
Retired Supreme Court Justice Sandra Day O’Connor has started a new, “nationwide” campaign – the O’Connor Judicial Selection Initiative at the University of Denver’s Institute for the Advancement of the American Legal System. The goal – surprise, surprise – is to abolish democratic elections for Supreme Court in states that still allow voters to choose judges and give that power to a panel of elites, typically controlled by lawyers. (More from the folks at Justice at Stake.)
O’Connor’s arguments were depressingly familiar:
- People are stupid … “A voter goes into the voting booth on Election Day, and they have a long list of races to vote for. When they come to the judges, they typically don’t know any of them. How are they supposed to decide?”
- Today’s judges are unqualified, unfair and partial … “What the people want and need at the end of the day is a fair and impartial judiciary, one that’s qualified, fair and impartial. It is almost impossible to get that by using popular campaign-funded elections.”
Of course, Justice O’Connor opposes the traditional democratic means for educating voters – i.e. having candidates actually speak to the people about their ideas and governing philosophies…that would sully the hands of the demi-gods who rule our courts. (To be fair, O’Connor does support the idea of having a group of lawyers evaluate a judge’s performance and then instruct people how to vote in meaningless retention elections.)
You’d also think that after casually slandering hundreds of sitting state Supreme Court justices, Justice O’Connor would provide us a list of all the judges who are not “qualified, fair and impartial.”
Really, though, it’s hard to blame Justice O’Connor for her views. I’m certain it’s extremely difficult for someone educated at one of the nation’s most prestigious law schools, who spent a long, honorable career at the highest levels of the judiciary, not to believe that she is more qualified than your average voter to determine who should sit on our courts. I’m ashamed to admit there are days when I feel that my humble political opinions should be given more weight than others’. In fact, it happens every time I watch Fox News or MSNBC.
But in my calmer moments, I’m content my vote counts for no more and no less than Justice O’Connor’s and millions of other American citizens. After all, isn’t the whole point of democracy a refutation of the notion that certain people enjoy a privileged role in choosing our leaders?
PA Supreme Court Justice: Judicial Elections Don’t Affect Court
November 25, 2009
Kudos to Justice Debra Todd of the Pennsylvania Supreme Court for her opinion piece that appeared this week in the Pittsburgh Post-Gazette. As AmericanCourthouse readers know, there has been a multi-decade effort to eliminate democratic judicial elections in Pennsylvania, led chiefly by Pennsylvanians for Modern Courts. PMC and others claim judicial elections politicize the courts - but Justice Todd, elected to the PA Supreme Court in 2007 as a Democrat, is having none of it…
“…while a candidate running for an opening on the Supreme Court does so as a Republican or a Democrat, a justice is not beholden to any party and the assertion of political control of the court is simply incongruous…[A] judge is elected to interpret and apply the law of the commonwealth in accordance with the Pennsylvania and United States constitutions. While the casual observer may believe that because we elect judges in our commonwealth politics control our judiciary, nothing could be further from the truth. Just as Lady Justice does not permit a voter registration card to tip her scales, it should be clearly understood that no political party controls the Supreme Court of Pennsylvania.”
Thanks to JudgesonMerit for brining this to our attention. You can find their spirited, opposing view here.
No Merit In Ohio
November 23, 2009
According to the Columbus Dispatch, a small group of legal elites – including the Chief Justice of Ohio’s Supreme Court and the president of the Ohio Bar – got together last week to discuss the best way to select judges in Ohio. Guess what? They think legal elites should have more control – people like themselves, in fact.
When asked, 78 percent said they would support a ballot provision abolishing democratic judicial elections and replacing them with “merit” selection – where elites pick judges and voters are shut out of the process. Sounds impressive – until you hear there were only about 50 people in the room.
Nevertheless, this pseudo-scientific “poll” perfectly captures the condescending mindset behind the “merit” selection crowd. Fifty elites gather at a swanky hotel and inform roughly 8.2 million Ohio voters that their participation in deciding who will control one-third of their state government is no longer needed.
Federal Appointment for Louis Butler: More “Open Defiance” of Wisconsin Voters
November 19, 2009
As American Courthouse readers will recall, Wisconsin Supreme Court Justice Louis Butler was unceremoniously dumped by Wisconsin voters last April – the first sitting justice to lose his/her seat in four decades, a terrific Wall Street Journal editorial tells us. His reward for being the favorite martyr of the trial bar/”merit” selection crowd? A lifetime appointment to the federal bench by President Obama.
Butler’s defeat was hardly surprising; in 2000, Wisconsin voters overwhelmingly rejected him by a 2:1 margin. Governor Jim Doyle’s decision to go ahead and appoint Butler to the court anyway “overturned the clear results of the election,” wrote Charles Sykes for the Wisconsin Policy Research Institute and was in “open defiance” of the wishes of the people of Wisconsin.
Now, as the Journal points out, Wisconsin voters “will have years to contend with the decisions of a judge they made clear they would rather live without.” Earlier decisions by Justice Butler included rulings that “dismantled” Wisconsin’s medical liability reform and invented crackpot new theories opening innocent businesses to more abusive litigation. No wonder he was thrown out.
The Journal notes that Butler’s nomination shows “contempt for Wisconsin voters,” which is certainly true. It also signals that when it comes to the Obama Administration’s judicial nominations, special interest groups like the trial bar and the American Bar Association will be calling the shots.
Butler’s April 2008 defeat kicked off a national debate over judicial elections. The election results were used by the ABA and the trial bar in a push to end democratic state judicial elections and replace them with so-called “merit selection” committees. Wisconsin continues to support judicial elections and many in the state see the ABA for what it is: the last group the American people should put its faith in to produce fair jurists. It has become nothing more than a rubber stamp for the left…and that’s not right.
Judge Says Merit Selection = “Marketing, Pure and Simple”
November 17, 2009
“Merit” selection schemes are “just marketing, pure and simple” and won’t produce better judges, says West Virginia Supreme Court Chief Justice Brent Benjamin in an interview with the West Virginia Record.
“Let people pick their judges. It makes sense. To paraphrase John F. Kennedy, a state afraid to let its people vote is a state afraid of its people. The notion that people can’t be trusted to have a say in government … that is really sad. Certainly elections can be tough, but I have confidence in people. Give them the information and believe in them….Part of a democracy is having a choice.”
In an era where many legal elites, such as former Supreme Court Justice Sandra Day O’Connor, believe the power to choose judges should be taken away from voters and handed over to lawyer-dominated tribunals, it’s refreshing to hear one of our public servants on the bench stand up for the rights of ordinary citizens.