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.
The People Speak!
May 23, 2011
Proponents of “merit” selection like to pretend that the public is firmly behind their scheme to disenfranchise voters and allow unelected, unaccountable legal special interest groups to pick judges. The claim usually comes courtesy of some push-poll that misleads poll-takers into believing that “merit” selection will cure every social ill from nasty judicial campaign ads to the price of a gallon of gas. Well, last month Rasmussen polled voters about their attitudes toward picking judges – and guess what! – voters overwhelmingly believe they should be the ones in charge.
Among likely voters, about two-thirds (65 percent) said judges should be elected, while just 22 percent say judges should be appointed. A stunning 69 percent say judges should actually be term-limited – a sign of voter frustration with an increasingly activist, imperial and unaccountable judiciary. The results mirror a 2008 poll by the American Justice Partnership (full disclosure: I’m president of AJP). Hat-tip: American Thinker.
“Madigan’s List” or the Politics of “Merit” Selection
April 20, 2011
For anyone who still believes in the tooth fairy or that “merit” selection takes the politics out of judicial selection, this Chicago Tribune report is must reading. Absolutely, positively must reading. Hat tip: Point of Law.
Like other “merit” selection schemes, the process for choosing associate judges in Cook County, IL is supposed to be free of political influence. In theory, associate judges are chosen by “merit” by the county’s 275 circuit judges. In practice, gaining a spot on the bench often requires winning a place on “Madigan’s list” – that’s Illinois Speaker of the House Michael Madigan. Read more
Two Legal Elites Run Up the White Flag on “Merit” Selection
April 18, 2011
Yesterday’s New York Times op-ed page featured a thumb-sucker by a law school dean and a professor arguing that “legal elites must come to terms” with the unpleasant fact that “judicial elections are here to stay.” The piece leads off with what passes for thoughtful analysis on the editorial pages of The Gray Lady these days – the observation that America’s benighted voters “rarely know much, if anything, about the candidates” running for our courts, followed by a little moral preening/boilerplate, “ideally, judges should decide cases based on the law, not to please the voters.” This raised an obvious, but tangential question in my mind: If voters are so dim that they know little “if anything” about judicial candidates, why on earth would any judge feel the need to base any decision on a desire to “please the voters”?
Anyway, the most interesting part of the piece was the dog that didn’t bark. Not once in 800+ words did the authors utter the phrase “merit selection.” In fact, they inform us, while “judges, scholars and advocates” may “find intellectual comfort in seeking to eliminate judicial elections,” they “are indulging a luxury that America’s courts can no longer afford.” Once I got past the putrid smugness, the full weight of this remark hit me. Two charter members of the legal elite believe the whole “merit” selection campaign is lost! They just can’t get it past those pesky, idiot voters! Even “a campaign led by Sandra Day O’Connor” isn’t working!
Read more
Bombshell in Wisconsin
April 8, 2011
After trailing by a razor-thin 204 votes yesterday, Wisconsin Supreme Court Justice David Prosser vaulted to a 7,300+ vote lead after Waukesha County Clerk Kathy Nickolaus discovered that she failed to report one city’s 14,315 votes. Ramona Kitzinger – a Democrat serving on the Waukesha County Board of Canvassers – appeared at the press conference with Nickolaus and backed up her account:
“We went over everything and made sure all the numbers jibed up and they did. Those numbers jibed up, and we’re satisfied they’re correct.” [As a Democrat] I’m not going to stand here and tell you something that’s not true.”
Even so, challenger JoAnne Kloppenburg and Wisconsin Democrats immediately cried foul, noting that Nickolaus worked in the state Assembly Republican caucus when Prosser served as Assembly speaker and suggested they may call for an independent investigation. Liberal special interest groups, who spent millions to put Kloppenburg on the Court, were outraged, calling for Nickolaus’ computers to be “seized” and examined to see if “a crime could have occurred.”
Earlier, when it appeared Prosser might lose, the Milwaukee Journal-Sentinel counseled both sides to “act with grace and try to avoid making Wisconsin the Florida of 2011.” Good luck with that advice if Prosser ends up winning as now appears likely.
Still too Close to Call in Wisconsin
April 8, 2011
The Wisconsin Supreme Court race is still too close to call and likely headed for a recount. Challenger JoAnne Kloppenburg currently holds a razor-thin 204 vote lead out of nearly 1.5 million votes cast, following a multi-million dollar smear campaign against incumbent Justice David Prosser. A recount is expected to begin the week of April 18 and to be done by early May, according to a Wisconsin State Journal report.
The results will likely determine the fate of Governor Scott Walker’s union reform bill, which is currently being held up by court challenges. If Kloppenburg wins, liberals will enjoy a tenuous 4-3 majority, giving government unions the opportunity to accomplish through the courts what they could not achieve in the legislature: blocking Walker’s reforms and preserving the gold-plated pension and benefits package that threatens to bankrupt the state. The race also validates an observation by my old boss, former Michigan Governor John Engler that the best reform legislation is only as good as the latest Supreme Court decision. Business leaders and citizens nationwide who support efforts to retake control of our state governments from government unions and other special interests need to wake up to the fact that state Supreme Court races are going to be ground zero in this epic battle.
Will the Wisconsin Smear Campaign Backfire?
April 5, 2011
John Fund at the Wall Street Journal suggests that the multi-million dollar smear campaign against Wisconsin Supreme Court Justice David Prosser could backfire. Fund writes that “hopefully, voters will be able to discern the truth from propaganda.”
Key word: Hopefully.
A Smear Campaign in Wisconsin
April 4, 2011
One of the schemes the Soros Institute for a Non-Democratic Judiciary (aka Justice at Stake) consistently pushes is public financing for state judicial races. In a recent press release, the group called public financing, “one of the most powerful reforms in shielding courts from special-interest influence.” After taking a look at Wisconsin and the multi-million dollar, government union-bankrolled smear campaign attacking Justice David Prosser, that quaint little claim has been exposed as utterly ludicrous.
A Politico article today suggests the “infusion of outside spending … could total as much as $5 million” in the race to unseat Prosser, which will be decided tomorrow. Government unions see the race as the last chance to undo Wisconsin Governor Scott Walker’s union reforms – and they’ve unleashed the goon squads on Justice Prosser. As a recipient of public financing, the Prosser campaign can only spend $400,000 in return, so groups that support union reform have stepped in to help.
All this is fine with “merit” selection proponents like the Brennan Center (supported by over $2.2 million in Soros funding). One of their spokesmen called the flood of special interest cash smearing Justice Prosser “a silver lining within some other unfortunate and troubling developments.” Why? Because outside groups and the campaigns themselves are responsible for the spending spree – as if the distinction made a whit of difference at the end of the day.
One crystal clear lesson from this Wisconsin Supreme Court race is that public financing does nothing – ABSOLUTELY NOTHING – to remove politics from judicial contests.
A Smear Campaign in Wisconsin
March 31, 2011
Robert Costa at NRO has a good piece on the stakes in the April 5 Wisconsin Supreme Court race, which will likely decide the fate of Governor Scott Walker’s bill to curtail the power of government unions, whose gold-plated pension and benefits contracts threaten to bankrupt the state. Legal challenges to the bill raced through Wisconsin’s lower courts and now rest with the Supreme Court. Conservatives currently hold a 4-3 majority, but special interest groups are pouring millions into a smear campaign to unseat conservative Justice David Prosser. Even the Gavel Grabbers over at the George Soros-funded Justice at Stake took note of a particularly outrageous ad sliming Justice Prosser, but mostly in a “he’s getting what he deserves” vein. Outside groups that want to defend the rule of law in Wisconsin (rather than the rule of trial lawyers) need to step up to the plate and defend Justice Prosser.
Wisconsin Supreme Court Race Gets “Very Interesting”
March 14, 2011
The professional Left and advocates for budget-busting public sector unions are turning their sights – and most likely millions of dollars – on the upcoming Wisconsin Supreme Court election. But don’t expect any protest from Justice at Stake or the rest of the $45 million (and counting) George Soros-bankrolled campaign to reshape our courts. The current sitting Justice is a conservative, you see, and leftwing outrage over politicizing judicial races doesn’t apply if they sniff a chance to boot out a conservative.
The battle between Wisconsin taxpayers and the state’s public employee union has made the April 5 Supreme Court election between incumbent Republican David Prosser and Democrat JoAnn Kloppenberg “very interesting,” writes David Dayen at uber-liberal Firedoglake. Republicans currently hold a 4-3 balance of power on the Court, but Dayen expects “lots of organizing and millions of dollars” to be “poured into this election…” “If Democrats win,” writes Dayen, “the legality of what took place tonight [the legislature’s passage of a bill reforming public sector unions] may be put in greater question.”