An Olive Branch to the “Merit” Selection Crowd
February 21, 2012
As Tennessee debates a proposed constitutional amendment on “merit” selection, Vanderbilt University Law Professor Brian Fitzpatrick offers three proposals to make judges chosen under this system more accountable.
- Make the “merit” selection commission’s role advisory, allowing it to review candidates and make recommendations, but place the final authority in the hands of the governor, who is accountable to all Tennesseans.
- Require that all nominees be confirmed by the General Assembly.
- Require judges to be renominated and reconfirmed before facing retention elections, which are largely ineffective in holding judges accountable.
Fitzpatrick’s proposals certainly represent an improvement, although I prefer making judges fully accountable to the people through democratic elections, as spelled out in Tennessee’s Constitution. It’s hard to see how any “merit” selection supporters would disagree with such obvious common sense – unless of course their real concern was not judicial independence, but shaping the courts to their liking by rigging the judicial selection system.
More Concern over Special Interest Influence in North Carolina Judicial Selection
February 17, 2012
Daren Bakst, Director of Legal and Regulatory Studies for the John Locke Foundation in North Carolina posts a compelling argument against the state’s flirtation with “merit” selection. As I’ve written, NC Governor Beverly Perdue has created a doppelganger “merit” board and the state’s legal special interests want to give it the force of law.
As Bakst points out, the current commission’s composition “is entirely political in nature.”
“Eight special-interest groups nominated three attorneys each, one of whom the governor was required to pick for the commission. She chose the 10 remaining members herself. While there’s nothing unusual in a governor being influenced by partisan interests in performing her duties, she shouldn’t formally abdicate power to her political allies. This is akin to the governor issuing an executive order compelling her to let special-interest groups pick three bills, one of which she must veto, or let special-interest groups identify three prisoners, one of whom she must pardon.”
The North Carolina Bar is lobbying heavily to replace the state’s democratic judicial elections with “merit” selection, which empowers the Bar at the expense of the people. As Bakst puts it, “the proposed scheme would be far more political than our current election system because it would encourage – and, in fact, would require – behind-the-scenes lobbying as opposed to transparent elections.”
Bakst suggests that such a “flawed system” is unlikely to make it into the state Constitution anytime soon. However, it is incumbent on the next governor to “rescind [Perdue’s] executive order immediately and fight to ensure an independent judiciary and a judicial selection process that doesn’t place special interests over citizens.”
Crunching the Numbers in Minnesota
February 17, 2012
Now that Minnesota Governor Mark Dayton has appointed another lawyer to serve on the state’s judicial selection commission, attorneys hold 27 seats among the various nominating panels, compared to 22 non-lawyers. (Feel free to check my count.) This means that lawyers now make up 55 percent of the committee, but comprise only 0.42 percent of the population. (Again, check my math). Even if you tighten the population number to include just registered voters, lawyers make up only about 0.73 percent.
Can someone in the “merit” selection movement please remind me again exactly why lawyers deserve such a disproportionate influence in picking judges?
Legal Special Interests Still Dominate Judicial Selection in Iowa
February 17, 2012
While the decision by Iowa voters to dump three state Supreme Court Justices last November may have reminded the state’s legal elites that the people still have a voice, it’s clear that the legal special interests still have a chokehold on Iowa’s judicial selection system. Recently, two Iowa attorneys were appointed to the state’s District Judicial Nominating Commissions for Judicial Election District 2A, one of 14 sub-districts in the state. Of the 11 commission members, five are elected by lawyers and five are appointed by the governor, with the most senior district court judge serving as chair. That means in Iowa, by law, legal special interests control who gets chosen to sit on state benches. So in Iowa, and the rest of “merit” selection-land, it’s We the Lawyers … instead of We the People when it comes to picking judges.
From “Chokegate” to “Merit” Selection in Wisconsin
February 15, 2012
Wisconsin Supreme Court Justice Ann Walsh Bradley last made headlines as one of the antagonists (along with Justice David Prosser) in the state’s infamous “chokegate” incident. (She said he choked her; he said she charged him; a special investigator sidestepped the whole mess). Now Justice Bradley, along with colleague Justice Patrick Crooks, wants Wisconsin to end democratic judicial elections in favor of “merit” selection.
Justice Bradley wants to take away the right of Wisconsin citizens to vote because she’s afraid “an elective process isn’t one where the people are really being heard …” Bradley is mum on exactly how allowing a small committee controlled by lawyers who pick judges behind closed doors allows the people to be “heard.” Apparently the people don’t agree. Despite a heavily slanted Justice at Stake poll that employed every trick in the trade, voters still opposed “merit” selection by a stunning 59 percent to 23 percent margin.
For his part, Justice Crooks suggests that the “money issue” is impacting the relationship between Justices on the court – the implication being that the charge/choke incident was the result of each Justice being chosen by the people, rather than their sharply diverging views over a controversial issue before the Court. Alternately, had each Justice maintained his/her identical views, but been chosen by lawyers behind closed doors, they’d be singing Kumbaya. In technical, psychological terms, this is what’s called rubbish.
Justice Crooks also praised the move by several Wisconsin representatives to bring the entire issue before the Legislature. Apparently the “merit” selection crowd’s deep concern over mixing politics and the judiciary doesn’t apply to lobbying by Supreme Court Justices for legislation they favor.
NC Law Prof Demolishes “Merit” Selection
February 2, 2012
Strong oped by Elon University law professor Scott Gaylord on the subversive campaign afoot in North Carolina to take the power to pick judges away from the people. In a recent post, I pointed out that North Carolina Beverly Perdue’s new judicial advisory panel is stacked with trial bar poo-bahs. Gaylord lifts the rock even higher by digging into their political fundraising:
“Last month, Gov. Beverly Perdue appointed 18 individuals to her judicial nominating commission, which will advise her on judicial appointments. The committee is anything but nonpartisan, being dominated by prominent Democrats from across the state. A quick review of federal campaign donations of the newly appointed commission members shows that they donated almost exclusively to Democratic candidates.”
Gaylord demolishes the fantasy that “merit” selection takes “politics” out of the judicial selection process. Instead, “merit” selection merely “removes the citizens from the judicial selection process in favor of an unelected and unaccountable committee” – and a sharply partisan one at that. “Judicial elections provide North Carolinians with a proven way to hold the judiciary accountable,” Gaylord writes. Let’s hope the North Carolina legislature see through the ruse and preserves the system that has served the state well for over 140 years.
More on Tennessee
February 2, 2012
David Oatney weighs in on a proposed constitutional amendment in Tennessee to establish in law what the state has already achieved in practice – namely pick judges by secret “merit” selection rather than in open democratic elections by “the qualified voters of the State,” as the state Constitution prescribes.
The Wrong Direction for Tennessee
January 30, 2012
Tennessee Senate Speaker and Lt. Governor Ron Ramsey “says he’ll hit the campaign trail to get a proposed state constitutional amendment on the ballot in 2014” to affirm the state’s “merit selection” system. Many have long doubted the constitutionality of the scheme, which has been used since 1971, given the Tennessee Constitution’s requirement that judge be “elected by vote of the people.”
Ramsey has been a longtime critic of the current system and pressed much-needed reforms to make the nominating commissions less subject to special interest control. Ramsey says his goal is to have “conservative judges” who “interpret the law, not make law.” His assurances that a “merit” selection system newly embedded into Tennessee’s Constitution is based largely on the fact that he and fellow Republican House Speaker Beth Harwell now control who sits on the judicial nominating commission. That’s fine as far as it goes – and is certainly preferable to having commissioners hand-picked by the trial bar, as was the previous practice.
The better option, however, is putting the choice back in the hands of the people themselves through democratic elections. William F. Buckley’s quip that he’d rather be ruled by the first 500 people in the Boston phone book than the Harvard faculty wasn’t just a flash of his trademark wry humor. The wisdom of the people can’t be replicated by a group of elites assigned to make decisions for us. The fact that in Tennessee they’ll be “our” elites (at least temporarily) rather than “their” elites is really beside the point.
If It Looks Like “Merit” Selection and Smells Like “Merit” Selection…
January 23, 2012
Has “merit” selection become so discredited that its supporters won’t even utter the name? That seems to be the case in North Carolina, if Paul D. Carrington of the North Carolina Bar Association Committee for Judicial Independence is any guide.
In a Charlotte News and Observer oped last week, Carrington bemoans the U.S. Supreme Court’s decision to invalidate “matching fund” rules that shoveled taxpayer dollars to candidates in danger of “being outspent by rival candidates” who chose not to participate in public financing. Since, “alas, our good system is now dead,” Carrington and the North Carolina Bar Association are pushing a new plan that “assigns an important role to voters to approve or disapprove appointments of judges nominated by our governor on the advice of a diverse and disinterested panel.” Carrington applauds Governor Beverly Perdue for having “taken the first step in creating a sensible system” by establishing “a diverse committee to advise her on prospective appointments.”
Sure smells like “merit” selection to me, although Carrington doesn’t dare mention it. But just to be sure, I Googled “North Carolina judicial nominating commission” … and whaddya know! In addition to the usual assortment of Bar Association luminaries, it turns out this shiny new commission, which Carrington wants “firmly established to play an important role” in picking judges is chaired by Perdue’s “former general counsel” who just happens to be a “fellow of the American College of Trial Lawyers.” Another commission member is a Raleigh attorney who served as the “founding Chair” of the successor group to the North Carolina Academy of Trial Lawyers. Nope, nobody here but us “diverse and disinterested” committee members.
As an old political hand, the language of Carrington’s piece fascinated me. In place of a “merit” commission, we have a “diverse and disinterested panel;” instead of acknowledging that the committee would actually have the power to make nominations, we hear it would merely “play an important role” in the process; instead of dictating to Governor Perdue or a future governor, the commission merely “advise[s]” on “prospective appointments.” Of course, the whole proposal leads off with the assurance that it “assigns an important role to voters” – which is the first sign they’re about to get shafted.
Maybe I’m getting cynical, but I’ve been on the used car lot before and I know when a lemon is being gussied up so it can be pawned off on some unsuspecting customer, which in this case is North Carolina’s voters.
Meet James Bopp
January 20, 2012
The left-wing American Prospect has a long profile on James Bopp, a tireless leader in the battle to overturn restrictions on free speech in elections, which typically masquerade as “campaign finance reform.” Bopp is best known for filing the suit that resulted in the landmark Citizens United decision, but he also played a key role in Republican Party of Minnesota v. White – the 2002 U.S. Supreme Court ruling that lifted prohibitions that barred judicial candidates from discussing … well, pretty much anything. While the article tars White and Bopp for “the escalation in money, TV ads, and vitriol in recent judgeship races,” Bopp makes the more compelling, common sense point that it is “quite legitimate for people to want to know and take into account and vote against judges who they believe are not using the right values.”
Here, in a nutshell, you have the difference between proponents of “merit” selection and supporters of judicial democracy. The left-wing “merit” selection crowd believes judges should never deign to explain their reasoning to ordinary voters. Most voters are not sophisticated enough to understand the complexities of judicial reasoning anyway, so judges must be shielded from having their words or opinions become the stuff of “vitriol” or, heaven forbid, a TV ad. Those of us who believe in a more democratic judiciary trust that voters can weigh various sources of information about judicial candidates and separate out the important from the demagogic. We put our faith behind ordinary people in the voting booth, not legal elites who hide behind closed doors to decide who will rule us from the bench.
Although the profile is critical, you can’t help but notice a grudging respect for Bopp’s effectiveness at fighting for his beliefs.
Keep fighting for the people, James!