Do As I Say, Not As I Do
January 27, 2012
The Gavel Grabbers – the social media arm for Justice at Stake and the $45 million George Soros-fed campaign to shape America’s courts to his uber-left political leanings – are wringing their hands over the “anti-court fever” stoked by Newt Gingrich. Gavel Grab quotes criticism by columnists who decry the “constitutional crisis” Gingrich is “promising,” along with warnings his proposals would turn America into a “banana republic.” Yet Justice at Stake and the entire Soros machine has itself been guilty of slamming court decisions with which it disagrees with as much fervor as Gingrich.
Justice at Stake’s Bert Brandenburg, for one, condemned the U.S. Supreme Court’s Citizens United decision as a “ruling that pours gasoline on an already raging bonfire” and, with no evidence whatsoever, predicted it “will pose an especially grave threat to the integrity of elected state courts.” The Democratic Senatorial Campaign Committee has launched a campaign to overturn Citizens United, with no apparent protest from Justice at Stake.
Let’s see now: Gingrich’s critique of America’s courts threaten a “constitutional crisis” … but Justice at Stake’s attack on the U.S. Supreme Court serves some noble public cause. How does that work exactly? The answer is simple: it’s all politics. When Justice at Stake’s ox is being gored, as in the Citizens United decision, incendiary rhetoric and demands the ruling be overturned are fair game. But if someone else questions the courts … well! How dare they turn America into a “banana republic”?!
All of which goes to show, as if further proof were needed, that the entire Justice at Stake enterprise is merely an effort to promote a certain political and ideological viewpoint in our courts. That’s certainly their right. But to suggest that they’re serving some broader public good is, to quote another Gingrich line, a bunch of self-righteous baloney.
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.
Shock Justice At Stake Poll!! Wisconsinites Hate “Merit” Selection
July 27, 2011
Justice at Stake is peddling the results of a new poll it financed that it claims demonstrates a “plunge” in public approval for Wisconsin’s Supreme Court. Of course, the mainstream media dutifully reported the story exactly as it was spoon-fed to them by Justice at Stake.
Wisconsinites were asked whether they approved or disapproved of the job the state Supreme Court is doing. Given the recent turmoil in the state – a tough Supreme Court campaign, a controversial 4-3 ruling upholding Governor Walker’s union reforms and “he said/she said” reports of physical altercations between justices – it’s something of a surprise that the poll results show an approve/disapprove spread of a measly 6 percentage points (33 percent approve/39 percent disapprove). That’s tighter than the 9-point differential in President Obama’s job approval rating in today’s Rasmussen survey. In other words, Wisconsin’s Supremes are making out better than the president!
What’s even more surprising is that “merit” selection continues to bomb among Wisconsin voters despite the alleged crisis of confidence in the state’s judiciary. Although Justice at Stake tried to bury the fact in its press release, a stunning 59 percent of voters oppose “merit” selection, compared to a paltry 23 percent that support it. What’s absolutely stunning – stunning! – is that this result came after a series of the most slanted, biased, prejudicial questions that all but put a gun to the respondents’ heads to try to persuade them to support “merit” selection.
- In Q8, poll takers are told Wisconsin Supreme Court races have become “some of the nastiest in the country, full of misleading ads and accusations of race baiting” that “compromis[e] the fairness and impartiality of Wisconsin’s courts.”
- In Q9, they hear that the Supreme Court is “dysfunctional” and that one justice called another a “profane word” and “threatened to destroy her.”
- In Q10, they learn that one justice “physically assaulted” – an incident “under investigation by law enforcement.”
- Even after hearing all THAT, in Q12, Wisconsin voters STILL reject “merit” selection by more than 2.5:1.
I can just see the pollsters struggling to explain the results to a furious Bert Brandenburg and the rest of the JAS crowd … “Uhhhh … ahhhh … we’re really sorry, Mr. Brandenburg. We rigged the poll as best we could, but ordinary people just seem to hate ‘merit’ selection.”
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.
Why Won’t Justice at Stake Come Clean on Its Support for “Merit” Selection?
November 3, 2010
Justice at Stake is in a lather again because Glenn Beck (along with a recent Wall Street Journal editorial and op-ed) called attention to the $45 million campaign George Soros’ Open Society Institute has been waging to promote a host of schemes, including “merit” selection, that would radically change America’s courts. Among the goofier rebuttals is the claim that Justice at Stake ($5.8 million in Soros money) doesn’t really support “merit” selection. Give me a break.
As Ed Whelan pointed out the other day on NRO’s Bench Memos, Justice at Stake was a major contributor to Nevadans for Qualified Judges, which promoted … you guessed it! – “merit” selection. A casual review of the group’s October 19th contribution and expense report filed with the Nevada Secretary of State reveals that Justice at Stake was actually the second biggest contributor to the campaign during the most recent quarter, behind only casino mogul Steve Wynn’s Wynn Resorts.
I understand that Justice at Stake would prefer to keep all this quiet so it can keep perpetuating the myth that the “merit” selection movement is some kind of spontaneous public uprising, rather than a phony “grassroots” charade bought and paid for by a billionaire hedge fund tycoon. But does Justice at Stake really think that conservative groups don’t have access to the Internet and can’t instantly “fact check” its ridiculous claims?
Elections a Big Victory for Judicial Accountability
November 3, 2010
In addition to sending shock waves through Washington, voters on Tuesday sent another clear and unambiguous message: We want judges to be accountable to the people they serve.
In Nevada, voters crushed a ballot proposal that would have stripped them of their democratic right to vote for judges and transferred power to a tiny cabal of legal elites. With two-thirds of precincts reporting, according to a Las Vegas Sun report Question 1 was getting hammered 58% to 42%. Apparently, Sandra Day O’Connor’s incessant lobbying and 1:00 am robocalls backfired disastrously.
In Iowa, in a push-back against judicial arrogance, voters dumped three sitting Supreme Court justices who were up for retention – the first time in history that any justice lost a retention election. Voter outrage erupted when an activist court overstepped its authority by overturning the legislature’s ban on gay marriage and forcing the state to grant marriage licenses to gay couples.
In Michigan, conservatives regained control of the Supreme Court, with Robert Young and Mary Beth Kelly defeating trial lawyer-backed opponents. Rule of law justices will once again be a majority on Michigan’s high court.
(For additional state court election results, I recommend Ed Whelan/Gary Marx’s updates over at Bench Memos and the Legal Newsline’s rundown.)
As a recent report by the American Justice Partnership (which I run) reveals, the uber-liberal Open Society Institute has spent over $45 million in the last decade in an attempt to fundamentally alter America’s judiciary. Every so-called “reform” the Soros-bankrolled network and its leader, Justice at Stake, support, including “merit” selection, is aimed at reducing the power and input of ordinary citizens when it comes to deciding who will serve us on the bench. On Tuesday, voters loudly proclaimed that even George Soros’ millions can’t buy our courts.
Gotcha!
November 2, 2010
Bench Memo’s Ed Whelan nails Bert Brandenburg over at Justice at Stake for “misplaying the victim card” in his defense of Sandra Day O’Connor. Brandenburg ridiculously claims Justice at Stake is agnostic on the question of “merit” selection – but, Whelan points out, JAS is one of the main funders behind the “Yes on 1” campaign in Nevada which seeks to take away Nevadans right to vote for state judges and establish … you guessed it … “merit” selection.
Let’s Judge Sandra Day O’Connor by Her Own Standards
November 2, 2010
Justice at Stake’s Bert Brandenburg has a piece calling on everyone to pleeeaasssee “lay off” former U.S. Supreme Court Justice (and current “merit” selection lobbyist) Sandra Day O’Connor. Justice O’Connor got caught up in a little scandal last week after she woke up 50,000 Nevadans around 1:00 am with robocalls urging them to support a ballot initiative to end democratic judicial elections.
She tried to head off personal embarrassment by claiming she never authorized her taped message to be used as political telemarketing. But several outside commentators (including Ed Whelan and Gary Marx over at NRO’s Bench Memos and in a great oped by lawyers David Rivkin and Andrew Grossman) questioned whether her electioneering ran afoul of the judicial code of ethics. You see, although Justice O’Connor retired from the Supreme Court of the United States she has not resigned from the federal bench. She still hears cases when filling in on the federal bench and in just the past month had ruled on a case which could conceivably influence some Nevada voters.
This is where Brandenburg cries foul. He scolds O’Connor’s critics for “imply[ing] corruption” and then distancing themselves – of committing a “drive-by political hit” and conducting a “political mugging.” Talk about hypocrisy!
In making her “merit” selection campaign pitch, Justice O’Connor constantly impugns elected judges with absolutely no evidence of wrongdoing whatsoever. She casually slimes honorable judges, claiming “the question is one of perception” and arguing that judicial elections “give an appearance at least that there might not have been a fair and impartial judge sitting on the case.” Having implied corruption and waded into a political fight over the direction of our courts, she and her allies now want to hold her above criticism, even after creating her own “perception” or “an appearance at least” that there is a conflict between the work of Sandra Day O’Connor-federal judge and Sandra Day O’Connor-lobbyist for “merit” selection. Justice O’Connor wasn’t mugged – she was hoist by her own petard!
Before joining the bench, Justice O’Connor was a politician, so I suspect she doesn’t need to hide behind Bert Brandenburg. But if she’s going to keep taking political stands, she’s got to take the heat like everyone else – and she should also resign her position on the federal bench to end her “perception” problem.
Shut Up, They Argued
October 25, 2010
Justice Hijacked – the recent report released by the American Justice Partnership (which I run) – must be hitting a nerve. Last Friday, Justice at Stake – one of the prime financial beneficiaries of hedge fund billionaire George Soros’ $45 million campaign to radically change America’s courts – flipped out over a Wall Street Journal editorial that shined the spotlight on efforts by the Soros-bankrolled network to abolish democratic judicial elections in Nevada.
The closest thing they make to an argument is that Justice at Stake and the other groups funded by Mr. Soros are completely agnostic on “merit” selection. That’s kind of like the Chamber of Commerce claiming it doesn’t have any position on free enterprise.
Of course, Justice at Stake would have preferred that no one connect the dots and reveal the entire “merit” selection campaign for what it is: a push for a more liberal, more activist judiciary. Now that the public has taken notice and has begun pushing back against “merit” selection and the judges it produces in places like Nevada and Iowa, it’s no wonder that Justice at Stake is running for cover, reaffirming Justice Brandeis’ famous dictum that sunshine is the best disinfectant.
Lifting the Rock in Nevada
October 22, 2010
Great editorial in the Wall Street Journal today, lifting the rock on the effort to abolish democratic judicial elections in Nevada and put “the responsibility for courts in the hands of a legal elite, instead of with voters or elected representatives.” As the editorial makes clear, the campaign is being pushed by George Soros-financed groups like Justice at Stake, which “see the state courts as the next frontier for moving [their] political agendas.” (The Journal also quotes a recent study by the American Justice Partnership, which I run, revealing that Soros has dumped over $45 million into anti-election campaigns nationwide.)
Justice at Stake and other Soros-bankrolled groups try to fool the public into believing that the move toward “merit” selection is some kind of organic, grassroots uprising. But Nevadans have already voted down “merit” selection proposals twice – and polls show 71% of voters prefer judicial elections over other systems. As the Journal cleverly puts it, “Nevada voters should send a message that their judiciary can’t be bought” – by George Soros or anyone else.