Another Admission: “Merit” Selection Campaign is About Perception, Not Reality
March 8, 2010
Last week I did a little post on the ABA’s striking admission that the whole “merit” selection campaign is based purely on “perception” – not any real evidence that elected judges are “for sale” as most “merit” selection proponents claim. Well, it seems to have struck a nerve!
Our friends over at JudgesOnMerit – the group trying to end democratic judicial elections in Pennsylvania – were out this morning with an item entitled, “Why Perception Matters.” After admitting that elected judges are “certainly not” corrupt and are “by and large fully qualified to serve,” the blogger makes a run at defining the “perception” problem. There’s a lot of throat-clearing, but the main point seems to be this:
“The greatest problem, however, has to do not with the outcomes in specific cases, but with the effect judicial campaigning and fundraising have on the public’s perception of justice. We pay respect and honor to judges when we address them; we clothe them in grave black robes; and we have them sit elevated from the rest of us, looking down in judgment. A simple traffic court judge is addressed as ‘Your Honor,’ while even the office of the President of the United States commands no such title. All of this, so that decisions handed down by the courts are respected – and that respect is so critical because the judiciary as an institution has no means to enforce its edicts. Indeed, for a court to have any power at all, the public must believe that justice, and not some perversion of it, is being meted out in its marble hallways, and that judges are impartial arbiters of disputes and interpreters of law rather than mere political actors.”
The implication here is that the “perception” – which the blogger admits is false – justifies doing away with a right as fundamental as voting. But if “perception” alone disqualifies a judicial selection system, what about the “perception” associated with “merit” selection?
Under “merit” selection, judges are chosen not in open, transparent elections involving all the people, but by a tiny handful of elites (mostly lawyers) who deliberate behind closed doors. Isn’t there a “perception” that this turns the courts into closed, lawyers-only clubs?
And what about public accountability? In contested democratic elections, the people can decide if a judge is too beholden to this or that group and dismiss that judge from public service. Under the retention elections “merit” selection supporters promote, more than 99% of judges are re-elected. Doesn’t that create the “perception” that retention elections are just a fig leaf designed to insulate judges from the people they serve?
If all these groups – the ABA, JudgesOnMerit, Justice at Stake – believe the only problem with judicial elections is a false public perception, then why are they spending so much money to inflame this perception rather than debunking it?
Soros Targeting the Euro?
March 8, 2010
As readers of AmericanCourthouse know, George Soros has helped to bankroll Justice at Stake, the group dedicated to replacing judicial elections with so-called “merit” selection. Well, you might think that attempting to eliminate the democratic election of hundreds of judges in dozens of states would be enough to keep bazillionaire Soros busy. Well, what ordinary humans might call a full plate, Mr. Soros apparently considers to be an appetizer. Not satisfied with destroying democratic judicial elections, Soros is reportedly attempting to destroy major world currencies.
Another AHA! Moment
March 4, 2010
Last week I posted an item on Bill Moyers’ PBS rant about Citizens United, calling out the lack of any proof behind his hysterical assertion that there’s now a “crooked sign hanging on every courthouse in America reading ‘Justice for Sale.’” The Gavel Grabbers swooned, but also offered no proof to back up Moyers’ absurd assertion.
Well it seems I have an ally from an unlikely source: The American Bar Association.
In a letter posted on Gavel Grab yesterday, William Weisenberg, chairman of the ABA’s Standing Committee on Judicial Independence, writes that he “strongly disagree[s]” with Moyers’ statement and that he “view[s] this characterization of our Courts as impugning the integrity of our court system and the thousands of men and women who daily don their robes and administer justice in a fair and impartial manner.”
Picking apart Moyers was easy game for Weisenberg, but his next paragraph left me speechless:
“Our partners share the view, demonstrated in polling, that there is a serious ‘perception’ [his quotes] that financial support influences judicial decision-making. It is one thing to address the perception that you, JAS [Justice at Stake], our partners, and the ABA speak to often in our quest to drive money out of judicial selection. It is another thing to speak in terms of justice for sale as if it were a common thing.”
Now, you’re probably thinking … you lost your breath over THAT?
But what we have here is an admission from one of the High Priests of the movement that the whole gavel grabbing, multi-million dollar, “merit” selection campaign is based entirely on thin air – on a “perception” – not on any real, provable evidence that judges in mass numbers are selling their votes for cash. Justice in America is not “for sale” – it’s not even “at stake.”
Which raises two interesting questions:
- Wouldn’t it be better for Justice at Stake to spend George Soros’ hedge fund millions to dispel the false “perception” that justice is for sale?
- Will William Weisenberg write another letter to former U.S. Supreme Court Justice Sandra Day O’Connor rebutting her assertion that elected judges cannot “dispense law without prejudice?”
Bill Moyers Comes Out Against the First Amendment
February 26, 2010
That great ultra-liberal windbag Bill Moyers slammed the U.S. Supreme Court’s Citizens United decision, which that found that corporations have First Amendment rights to free speech and that Congress cannot use its power to muzzle speech it finds inconvenient during election time. (I didn’t watch the Bill Moyers Journal broadcast on PBS myself, but Billionaires Against Elections - aka Justice at Stake - summarized the lowlights on Gavel Grab.)
Moyers frets that the ruling “greatly expands corporate power over our politics” and “that corporate muscle just got a big hypodermic full of steroids.” Between bouts of such bloviating, he enlisted legal scholar/analyst/pooh-bah Jeffrey Toobin, who said the answer to this decision was - you guessed it - “merit” selection:
“When you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.”
Toobin offered no evidence to support this condemnation of democracy, or if he did, the folks who want to Grab the Gavel from the American people chose not to report it.
The truth is, Citizens United will probably not alter corporate spending on campaigns all that dramatically. Corporations have always been able to donate. The only difference now is these donations can be used to expressly advocate for a particular candidate, rather than going right up to the edge with issue ads. Any increase in corporate political spending is likely to be dwarfed by the trial bar and trade unions – two groups whose future prosperity is so dependent on their ability to pull the levers of government power.
In any event, Moyers himself had no concrete proof of any vast corporate conspiracy, other than a mysterious reference to a “very rich oilman” who paid $300,000 “to get a moment of President Clinton’s ear.” Did this fat cat get anything in return? I guess we’ll have to wait until the next episode.
More Democracy, Not Less In Wisconsin
February 8, 2010
A Madison, Wisconsin Capital Times editorial zings their brethren at the State Journal for its “misguided crusade” for an “unelected judiciary.” The whole thing is must reading, but a few points stand out. Among them:
“There is no evidence of significant support on the part of citizens or their elected representatives for the idea of creating a so-called ‘merit selection’ system, which would give political and legal elites the power to pick judges …”
This is an absolutely critical insight. The entire “merit” selection movement is not a grassroots uprising, but a manufactured campaign financed by the George Soros Institute for an Unaccountable Judiciary (aka Justice at Stake). The game plan is by now depressingly familiar: Commission a poll that suggests people are concerned about the influence of campaign contributions in judicial races. Then make the preposterous leap to the conclusion that elites, not ordinary people, ought to have the power to pick judges. And hope no one notices.
Of course, people are concerned about the influence of campaign cash on every elected office – from dog-catcher to president. Channeling progressive patron saint Robert La Follette, the Capital Times writes “the cure for what ails democracy is more democracy.”
That’s just another way of saying … when lawyers choose, the people lose.
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?
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.
Free Speech For Some, Silence For Others
September 10, 2009
Writing at the blog of the American Constitution Society (though I often wonder which constitution they’re talking about), Bert Brandenburg of Justice at Stake tries to take on the Citizens United free speech case argued in the Supreme Court yesterday. Gavel Grab pointed it today.
With all the nervous speculation on the left that Citizens United will win its case, leading to even more sections of the McCain-Feingold campaign law and other restrictions on free speech being struck down, Brandenburg tries to link Citizens United to the Caperton v. Massey case decided (wrongly decided, I think) earlier this year. Brandenburg argues that there’s too much “special interest” money around elections.
But whatever Brandenburg thinks, there’s no hard evidence linking “corruption” to political contributions to the judiciary - or in the election process, which is the real subject of Citizens United. None. As Ted Olsen argued for Citizens United. “there is simply no evidence that corporate and union independent expenditures have a ‘corrosive and distorting effect’ on the election process.” Olsen is right. And it’s the other side’s - Brandenburg’s side’s - burden to prove that assertion, not Citizens United’s.
Justice at Stake has been widely reported to be extensively funded by George Soros and other liberal donors. If Brandenburg is so concerned about the supposedly corrosive influence of money on politics, then why not support shutting down Soros’ and Justice at Stake’s speech rights before an election? Brandenburg has no problem with a billionaire financing a multi-million campaign to put one-third of our state governments under special interest control. So is the issue money or not?
If his defense is that Justice at Stake is not a corporation and that corporations (and unions) are somehow special, so what? Why does he believe in free speech for some but not for everyone? Why should it matter what form an organization takes as to whether it can have the same free speech rights as everyone else?
Not everyone is as rich as George Soros. (Most corporations aren’t as rich as George Soros.) Not everyone can fund organizations like Justice at Stake to do their bidding. Instead, people join together - including in business corporations and labor unions - to advance their economic interests. Their First Amendment rights shouldn’t stop at election time.
If corporations spend too much on political advocacy, the shareholders can call the board to account - or vote its members off the board. Actually, in the example he cites, I think the shareholders of Massey Coal would like to see the corporation’s money used to advance the interests of the coal mining industry. (And I bet the United Mine Workers union would be right there with them.) And with both today’s extensive contribution disclosure rules and an army of bloggers, corporate and union contributions wouldn’t be secret at all. They’d be exposed for everyone - including the voters - to see.
You’d think something called the American Constitution Society would be for free speech and the entire First Amendment. Apparently, you’d be wrong. Instead, it’s free speech for some, but not for all.
But don’t just take my word for it. Listen to the words of someone who I thought would be a hero to the American Constitution Society and its supporters, Justice Louis Brandeis, in his concurring opinion in Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”[1]
Brandeis is right and Brandenburg is wrong. More speech, not silencing speech, is the only appropriate policy in a democracy. Corporations and unions deserve free speech rights as much as Justice at Stake does.
[1] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
Among The Elites In Minnesota
March 11, 2009
A campaign is on to strip Minnesota voters of their right to choose state judges – a right enshrined in Article VI, Section 7 of the Minnesota Constitution. Our friends over at Gavel Grab/Justice at Stake – the group funded by hedge fund billionaire George Soros that is lobbying to abolish democratic judicial elections across America – have a thumb-sucker on the attempt to shift the power to select judges away from the people toward a tiny tribunal of lawyers.
Well-funded groups (like Justice at Stake) are pushing for a constitutional amendment that would “require all judges to submit to periodic professional performance reviews.” Actually, Minnesota judges are already “required” to submit to performance reviews: In a democracy, we call these “reviews” elections.
But a “performance review” isn’t really what Justice at Stake has in mind. The Quie Commission – named after former Minnesota Governor Al Quie – wants to set up two more commissions: A Judicial Performance Review Commission and an Appellate Court Merit Selection Commission.
The Judicial Performance Review Commission will consist of 30 people that “must be respected individuals of outstanding character and integrity and reflect the diversity of the state.” This august panel will have a majority of non-lawyers, but does anyone doubt that when these 30 “respected individuals” convene to pass judgment on a judge’s performance that William the Attorney won’t have more influence than Bill the Mechanic?
Actually, Bill the Mechanic probably won’t be allowed into the smoke-filled room because neither the Governor nor the Chief Justice, who will make all the appointments, will likely consider him, ummmm, “respected” enough to evaluate judges. Minnesota Chief Justice Eric Magnuson, after all, is on record as saying you “need to have a certain level of experience and insight and sophistication to be able to say that a judge got that [ruling] right.” Sorry, Bill.
But don’t judges – like any other public official – serve Bill the Mechanic as much as William the Attorney? Read more
A Must Read Article And A Challenge To Justice At Stake
January 26, 2009
University of Kansas School of Law Professor Stephen J. Ware had an important piece in Friday’s Wichita Eagle that devastatingly exposes the insider game of judicial appointments to that state’s Supreme Court and shreds the argument that “merit” selection delivers non-political judicial appointments. The entire op-ed is must reading, but here are some highlights:
Gov. Kathleen Sebelius recently appointed Dan Biles to the Kansas Supreme Court, showing once more what an unusually secretive and clubby process our state uses to select its highest judges.
Biles is the law partner of the Kansas Democratic Party’s chairman, and the governor is, of course, a Democrat. Sebelius said that she and Biles have been friends for more than three decades, and he has made campaign contributions to her.
But the insider dealings don’t end there. Professor Ware goes on to report that Biles is a member in good standing of the Kansas Trial Lawyers Association and that Gov. Sebelius herself was once the state director of the group. Just as troubling, Professor Ware writes:
…is how little the people’s views matter….So if the governor and [state bar] want to push the state’s courts in a particular direction, there are no checks and balances in the judicial-selection process to stop them.
“Merit” selection proponents claim retention elections preserve public accountability, but Professor Ware rightly points out that these Potemkin elections are a sham:
In fact, a retention election is nearly always a rubber stamp, and no Kansas justice has ever lost one. [my emphasis]
Since Kansas’ judicial nominating commission meets behind closed doors, “there is no public record of who voted which way.”
This secrecy prevents journalists and other citizens from learning about crucial decisions in the selection of our highest judges. In this closed process, a small group of insiders (members of the Kansas bar) have an extremely high level of control.
The Kansas bar defends this with the claim that the bar keeps judicial selection from being “political.” But when the process results in the governor appointing one of her own friends and campaign contributors, you have to wonder what kind of politics goes on behind closed doors or at trial lawyers’ cocktail parties.
Politics are inevitable when it comes to picking judges. The question is whether the politics will remain largely confined to the bar or become more open to the public and its elected representatives.
Justice at Stake claims its goal is to get politics out of the judicial selection process. While I don’t expect him to agree with every point in this article, perhaps Bert Brandenburg, Justice at Stake’s executive director, will join me in agreeing that, at least in this case, Kansas’ “merit” selection system has failed to deliver on its promise of non-political judicial appointments and should be revised to reduce the role of a single special interest group – the state bar. How about it Bert?