Rollback of “Merit” Selection Gathers Momentum
March 8, 2011
In the 1980s, President Reagan shifted America’s post-WW II strategy for combating Communism from “containment” to “roll back” – with brilliant effect. Proponents of judicial accountability are now making the same transition in battling “merit” selection – moving from preventing its spread to actively seeking its removal. As a recent Wall Street Journal editorial makes clear, the effort is garnering national attention.
In Kansas, the state House has adopted legislation to rein in the power of legal elites and their special interest groups like the state Bar when it comes to picking judges. The reform is supported by Kansas Governor Sam Brownback as a means of making the judicial selection process more accountable to citizens, rather than just lawyers – a radical concept in many legal circles.
The Journal points out that “merit” selection is also under fire in Iowa, Missouri and Tennessee, “even as groups like the George Soros-funded Justice at Stake funnel big money” into promoting the lawyer-dominated scheme – a point driven home by a recent American Justice Partnership report, Justice Hijacked. In each state, voters and their elected representatives are beginning to understand that ceding power over picking judges to the “lawyers guild” produces courts that are arrogant, unaccountable and un-democratic.
A Step Toward Democracy in Kansas
February 25, 2011
The Kansas State House adopted legislation this week to take judicial selection out of the hands of trial lawyers and other legal special interest groups and provide more public oversight. The bill, which passed 67-46 would replace the state’s “merit” selection system and allow the elected governor to appoint judges, with confirmation by elected Senators. While judicial accountability would be more direct under democratic elections, this is certainly a good step toward breaking up the lawyers-monopoly when it comes to picking our public servants on the bench.
In an interesting sidebar, Judge Richard D. Greene, the Chief Judge of the Kansas Court of Appeals, took to the op-ed pages to lobby against the bill, which raises an interesting moral dilemma for the “merit” selection crowd. The question of how judges ought to be selected is an important political decision properly left to the people and their elected representatives. While “merit” selection is supposed to keep politics out of the courtroom, Judge Greene certainly didn’t hesitate to deploy the full prestige and power of his position to wade into an inherently political discussion. He could easily have written as Rick Greene, private citizen, or even as Richard Greene, Esq. Instead, he politicized his judicial office by lobbying legislators.
So where are the expressions of outrage from “merit” selection advocates about the impropriety of sitting judges getting hip-deep into politics?? What about a lecture from Sandra Day O’Connor about the threats to judicial independence when judges act like Gucci-wearing lobbyists?
In his article, Judge Greene rolls out a new twist on the “people are stupid” argument so cherished by the “merit” selection campaign. “Merit” selection should be preserved because “we need our best and brightest to be judges” and we’ll only have high quality courts “if we continue to seek the best and brightest for our judges – not politicians selected for their viewpoint or agenda.” Translation: When lawyers pick judges, you get the “best and brightest” – when ordinary citizens or their elected representatives pick judges you get political hacks.
The arrogance is truly breathtaking.
Lifting the Rock on the “Merit” Selection Campaign
January 25, 2011
“Merit” selection proponents like to pretend that the entire “merit” selection campaign just bubbled up from the grass roots over citizen concern about judicial independence – a line the gullible press typically laps up. Gary Marx demolishes that farce in a two-part post on NRO’s Bench Memos.
As Marx demonstrates beyond any reasonable doubt, “merit” selection is not some organic, grassroots uprising, but a vehicle for placing trial bar-connected, left-leaning judges on state courts. In Iowa, Marx points out that three of the state Supreme Court’s current members are former members of the Iowa Trial Lawyers Association, while a fourth justice tied to the trial lawyer lobby was thrown out by voters in November.
Voters are starting to figure out the game. That’s why, as Marx points out, states such as Iowa, Tennessee, Kansas, Oklahoma and even Missouri (“merit” selection’s birthplace) are debating whether to amend “merit” selection to reduce the influence of special interest groups or scrap it altogether.
A Real Grassroots Uprising in Kansas
September 23, 2010
As a new report by the American Justice Partnership (which I run) rigorously demonstrates, the entire “merit” selection movement is part of a manufactured campaign to reshape the judiciary, financed by at least $45 million from hedge fund billionaire George Soros – complete with phony grassroots, pseudo-academic studies and slanted public opinion polls. Which is why it’s so refreshing to hear a real grassroots voice – like Donna Gillett of Leavenworth, Kansas, who launched a petition drive to get judicial elections on the ballot in the state’s first judicial district. Currently, a local “merit” panel, that has four of its nine members elected by lawyers, is in charge of picking judges and presenting them to the governor. 52 other counties in Kansas elect their judges.
For a dose of unvarnished common sense, read this recent interview with Gillett recently published in the Leavenworth Times. Here are a few highlights:
“[Merit selection] violates basic equality among citizens, the principle of ‘one person, one vote.’ The current system rests on elections open only to members of the bar, that is, lawyers….It elevates lawyers into a tiny elite and reduces the rest of us to an unacceptable status of second class citizens.”
“First, with popular elections a lawyer’s vote will no longer be worth more than any other citizen’s vote. Second, with popular elections, everything is out in the open. Any contribution of $50 or more is on public record at the courthouse. By contrast, our current system hides politics behind closed doors. It substitutes the politics of the bar for the politics of the citizenry.”
“The current system is firmly captured by a single powerful special interest group, the bar. If you’re naïve, then you’ll fall for the bar’s claim that they’re all about selecting the best people for judgeships. But if you’re realistic about human nature, then you understand that politics will always play a role in the selection of something as important as a judgeship. The only question is whether you want the politics out in the open where all citizens see what different groups are advocating, or whether you want to keep politics hidden in the backroom where only lawyers’ special interests count.”
Set Back in Kansas
September 16, 2010
Advocates of an open, transparent judiciary and judicial selection process suffered a set-back yesterday when a federal judge denied a request for a preliminary injunction against the state’s judicial nominating commission. A group of Kansas voters is challenging the state’s “merit” selection system, arguing that handing the power to pick judges over to a commission controlled by lawyers disenfranchises voters. As a lawyer for the group told reporters, “Because they [the commissioners] aren’t elected by the voters, they shouldn’t wield the power they do.”
Kansas Dust Storm
September 1, 2010
Two years ago, a group in Johnson County, Kansas promoted a ballot measure to restore the right to vote for county judges and end the local “merit” selection board. They unfortunately came up short - in large part due to the fact that “merit” proponents outspent supporters of democratic judicial elections 3:1 to defeat the measure, with most of the money coming from legal elites.
A group of Kansas voters is again calling into question the “merit” selection process. The Kansas Reporter (published by Kansas Policy Institute) has an article describing the effort to get rid of “merit” committees in Leavenworth and Atchinson counties. A petition is circulating in those counties in hopes of placing the issue on the November ballot. Petition supporter Donna Gillett says lawyers are the problem - four of the nine members on the “merit” panel are elected by lawyers:
“The appointment system denies the citizens of this district the right to participate equally in the selection of our judges.”
The Kansas Reporter also describes a separate anti-”merit” group led by election lawyer, James Bopp. The group has filed a lawsuit in federal court in Wichita to stop five members of the Kansas Supreme Court Nominating Commission from participating in judicial selection - all five are lawyers and all were elected by the state bar association.
As with the petitioners, Bopp also believes the favored treatment of the legal class is a problem when it comes to the state’s “merit” process. In fact, he believes Kansas’s “merit” selection law violates both the U.S. Constitution and the Kansas Constitution:
“If the Kansas Constitution said that the AFL-CIO is going to select judges, or the Right to Life or KKK or whoever, it would be perfectly obvious that would be wrong and this is equally wrong,” Bopp said. “There is nothing special about lawyers, and they’re more conflicted because their bread and butter is personal injury, and judges determine those cases, so many lawyers have an interest in who is the judge.”
“Nothing special about lawyers” — couldn’t have said it better myself.
The $$ Behind The Defeat Of Democratic Judicial Elections In Kansas
February 2, 2009
Surprise! Judges in Johnson County, KS and the lawyers expecting to have business before them in court wrote most of the checks to defeat a ballot initiative that would have restored democratic judicial elections and ended the practice of having judges selected by a committee controlled by lawyers. The news comes to us thanks to some terrific investigative work by two Kansas blogs – Kansas Meadowlark and Kansas Liberty. (Hat tip to dirtdiver.com for alerting me to these posts.)
Proponents of “merit” selection outspent supporters of democratic elections by more than 3:1 to defeat Question No. 1 on the November ballot. A review of the campaign financial records by E.F. Glynn reveals some interesting facts:
- “All 25 JoCo [Johnson County] District Court Judges and Magistrates, including several senior judges, contributed to keep their jobs unchanged. Instead of ‘recusing’ themselves … these Judges gave a total of about $32,600” to defeat democratic elections.
- “Missouri law firms and other out-of-state interests gave more than $87,300” to keep the current system.
- “Kansas law firms and other in-state contributors (excluding the judges) only gave about $55,000 to keep the current system.”
“Why do we see such a large Missouri influence on Johnson County and Kansas” courts, Glynn asks? Good question. 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?
Trial Lawyer Lobby Scores Several Big Victories — But Signs Of Hope In A Tough Election Year
November 5, 2008
Democratic state Supreme Court candidates – backed by the money and influence of the powerful trial lawyer lobby – scored several victories last night that could result in the rollback of important legal reform legislation and lead to a more lawsuit-friendly, anti-business environment. The trial bar also strengthened its grip on the judicial selection process in Kansas and Missouri. Yet rule-of-law judicial candidate also won races in many key states, providing signs of hope in an otherwise tough election cycle.
A 2008 election roundup:
Michigan: A “scathing” ad campaign financed by the Michigan Democratic Party along with Senator Obama’s landslide in the state helped Diane Hathaway upset Supreme Court Chief Justice Clifford Taylor. Ms. Hathaway’s victory will weaken the current rule-of-law majority on the court and worsen the business climate in Michigan’s already devastated economy.
Mississippi: Rule-of-law candidates captured three of the four Mississippi Supreme Court seats up for grabs. Although Chief Justice Jim Smith was upset by challenger Jim Kitchens, business-backed challengers Bubba Pierce and David Chandler defeated incumbents Oliver Dias, Jr. and Chuck Easley. Meanwhile, rule-of-law Justice Ann Hannaford Lamar beat back her challenger to retain her seat on Mississippi’s high court. The result should be a fairer, more predictable legal environment, which Gov. Haley Barbour believes is critical to attracting investment and jobs to Mississippi.
Louisiana: Greg Guidry won a pivotal seat on the state Supreme Court – a victory that is expected to help a rule-of-law majority take control of the high court.
Alabama: Republican Greg Shaw squeaked to victory over Democrat Deborah Bell Paseur in the race to fill the seat of retiring Republican Harold See. The Alabama Supreme Court will retain an 8-1 Republican majority.
“Merit” Selection: Residents of Johnson County, KS voted down a ballot initiative that would have restored the right to vote for county judges and ended the current “merit” selection process. In Greene County, MO, voters narrowly (by about 4,000 votes) approved an initiative to adopt “merit” selection, which has been used by all three Courts of Appeal and the Supreme Court in Missouri since 1945.
Wisconsin: Back in April, Wisconsin voters ousted Supreme Court Justice Louis Butler – who was appointed by a Democratic governor only after decisively losing his own bid for election and who promptly shifted the high court sharply toward the trial lawyer agenda.
All in all, the 2008 elections provide strong evidence that American voters support judicial candidates that will exercise judicial restraint by interpreting the law, rather than legislating from the bench. But as we saw in Michigan, the trial bar and supporters of an activist judiciary are both financially and philosophically committed to fighting this battle out state by state, race by race. The trial bar and its allies are not afraid to wage tough, nasty, expensive campaigns to shift the courts in their ideological direction. If the legal reform community wants to hold onto the gains we’ve made and even extend them, we must have that same level of commitment.
“They Don’t Think We’re Smart Enough To Elect Our Judges”
October 29, 2008
Another Kansas City Star article updates the campaign over the ballot initiative in bellwether Johnson County to scrap “merit” selection and restore democratic judicial elections. As it stands today, a 14-member commission dominated by lawyers screens applicants and sends a list of three hand-picked nominees to the governor, who is required by law to select one of the commission’s choices. While initial meetings with judicial candidates are open to the public, voters have no opportunity to question nominees or offer any input into the process.
Election opponents believe keeping judges at arm’s length from the people they serve is a good idea. Voters can learn everything they need to know “about judges’ qualifications and work on the bench through evaluations released by the Kansas Commission on Judicial Performance.” So one committee controlled by a special interest group (lawyers) gets to pick judges and another committee controlled by the same special interest group (lawyers) gets to tell voters what to think about judges.
“Merit” selection supporters say this system installs judges with “merit” on the bench – but what they really mean is that only certain people (like lawyers) have enough “merit” to make the decision over who controls one-third of our government. Charlene Bredemeier, a supporter of judicial elections, sums up this attitude pretty accurately:
“They [merit selection proponents] don’t think we’re smart enough to elect our judges.”