A Strong Defense of Judicial Elections
August 15, 2011
In an inteview with the Grand Rapids Press (MI) Former Michigan Chief Justice Clifford Taylor presents a principled defense for democratic judicial elections and (again) exposes the flaws of the so-called “merit” selection system.
What makes Taylor’s defense of judicial elections all the more compelling is that he himself lost a tough campaign for re-election following a series of attack ads. When asked about his support for judicial elections given his own recent experience with them Taylor says:
“Because you have one bad outcome doesn’t mean the whole system is awful. The fact that there can be misfires in a democratic system is no different than any other system. As I have characterized it, elections may have some warts but they are beauty queens compared to merit selection.”
Read the article summarizing the interview here and watch short video interview with Taylor here.
Joining Taylor at the Press was Colleen Pero, author of Justice Hijacked (and, full disclosure, my wife). Pero and Taylor are keeping a close eye on Michigan’s Judicial Task Force which is evaluating judicial selection in Michigan. The Task Force touts former U.S. Supreme Court Justice Sandra Day O’Connor as an honorary co-chair.
Of course, O’Connor has been waging a national campaign against democratic state judicial elections since she stepped down from the Supreme Court. While the Judicial Task Force claims to have “no predetermined position” on how to change Michigan’s system for picking judges, let’s just say I won’t be surprised if the Task Force somehow concludes that the best way to serve Michigan voters is to cut them out of the process for picking judges and replace them with a “merit” panel.
Monkey Business with Recusal Rules
July 21, 2011
Jeffrey Hadden of the Detroit News has a great piece on how recusal rules are being manipulated in a back door attempt to reshape courts by sidelining conservative justices. Hadden points out that a 2009 change in Michigan’s recusal rules – at a time when liberal activists had a temporary majority – allows state Supreme Court justices to remove each other from certain cases. The Court also shifted the recusal criteria from the rigorous “actual bias” standard to what Hadden rightly calls the more slippery “appearance of impropriety.” Current Michigan Chief Justice Robert Young warns the new rules risk “weaponizing” recusal motions because, as Hadden puts it, recusal votes can now be easily “manipulated and done in bad faith.”
Taylor Demolishes O’Connor at “Merit” Selection Event
June 16, 2011
While Sandra Day O’Connor’s “merit” selection powwow at Wayne State University earlier this week was heavily stacked with anti-election activists, former Michigan Chief Justice Clifford Taylor managed to crash the party, delivering a thoughtful, measured speech that ruthlessly demolished the arguments behind “merit selection.” It’s important reading for supporters of democracy in judicial selection, and I’ll try to get a link to the full speech, but here are some highlights:
- All Judicial Selection Methods are Political: “Any state appellate court judicial selection method – gubernatorial appointment with or without legislative confirmation, partisan or non-partisan election or the currently hyped and cleverly named, merit selection – can and does create the potential for the selectee to feel, or be perceived to feel, beholden to the selector.” Read more
O’Connor Brings “Merit” Selection Battle to Michigan
June 15, 2011
Lots of action in Michigan this week as former U.S. Supreme Court Justice Sandra Day O’Connor made her standard pitch for “merit” selection to a meeting of the state’s Judicial Selection Task Force. My take on the event can be found in this Lansing State Journal oped. The State Bar of Michigan has a write-up of speeches by both O’Connor and former Michigan Supreme Court Justice Clifford Taylor, who argued that “merit” selection lacks transparency and tilts courts to the left. Meanwhile, the Mackinac Center for Public Policy posted a piece on Capitol Confidential about the special interest money behind the “merit” selection campaign, including a reference to a study by the American Justice Partnership, which I lead.
Once you get past the boilerplate, O’Connor’s argument in Michigan basically boils down to this: Judges are different. Unlike governors and legislators, “the judicial branch must administer justice impartially, deciding cases solely on the basis of the facts and the applicable law…”
Of course, everyone agrees that judges decide cases based on the law, but if there’s any evidence elected judges are less capable of adhering to that standard than judges chosen by commissions, O’Connor doesn’t offer it. However, University of Pittsburgh Professor Chris Bonneau does offer evidence, pointing out “there is no difference … in the quality of judges who emerge from elections as opposed to appointments” and “there is no systematic evidence to date that judges’ votes are influenced by campaign contributions.”
O’Connor also tries to drag the U.S. Constitution onto her side, but as I’ve pointed out repeatedly, both James Madison and Alexander Hamilton make clear in Federalist 39 and Federalist 76 that the Framers would have been aghast at the prospect of judges being chosen under an unaccountable, non-transparent system like “merit” selection.
At the deepest level, judges really aren’t different. They are public servants and are expected to act in the public interest. Like governors and legislators, they are sworn to uphold their state Constitutions. But someone has to determine whether they are carrying out their duties. Under judicial elections, that someone is the people. Under “merit” selection, judges are accountable to no one but themselves – which is the definition of tyranny, not democracy.
O’Connor to Preside over Kangaroo Court in Michigan
June 2, 2011
Former U.S. Supreme Court Justice and current “merit” selection uber-lobbyist Sandra Day O’Connor is headed to Michigan, where she’ll preside over a Kangaroo Court known as the Judicial Selection Task Force. The task force is supposed to be objectively “studying” ways to improve judicial selection in Michigan, but the guest list is anything but nonpartisan.
The forum – to be held at Wayne State University Law School on June 14th – is heavily stacked with political hacks like former Michigan Democratic Party chair Mark Brewer and groups like the National Center for State Courts, which has raked in over $1.8 million over the last decade as a charter member of the George Soros-bankrolled campaign to end democratic judicial elections. With her heavy politicking on behalf of “merit” selection, Justice O’Connor herself gave up any pretensions to impartiality. Last fall, O’Connor was embarrassed after her voice was used to make robo-calls to Nevada voters in an unsuccessful attempt to impose “merit” selection in that state.
Yes, former Michigan Supreme Court Chief Justice Clifford Taylor has been invited as a token representative in support of democratic judicial elections. However, the Judicial Selection Task Force is doing everything possible to muzzle this point of view. Insiders tell me that O’Connor and task force director Justice Marilyn Kelly are refusing to allow a recording of the event, and public access is strictly limited. Sounds a lot like “merit” selection itself – where legal elites meet behind closed doors to pick judges and the public is shut out. So much for the free and objective exchange of ideas.
Getting the Facts Straight in Michigan
March 4, 2011
Justice Hijacked author Colleen Pero (I know, the name sounds familiar) has an article in Dome magazine rebutting recent attacks on the Michigan Supreme Court, which the people returned to conservative control this last election after a disastrous two-year experiment where tort-friendly judges ruled the roost. One of the attacks most frequently trotted out by those who want to indict Michigan’s conservative justices and turn Michigan’s court into a subsidiary of Trial Lawyers, Inc. is a supposed bottom-of-the-barrel ranking for the Michigan Supreme Court by a “University of Chicago Law School” study.
There are a couple problems here. First, the study wasn’t conducted by the University of Chicago Law School. Second, it was never published by the University of Chicago Law Review. Third, 76 percent of the opinions examined in the study were decided before the so-called “Engler four” – conservative justices appointed by former Michigan Governor John Engler – were appointed to the court.
Following the 2008 election, soon-to-be Chief Justice Marilyn Kelly promised to “undo a great deal of damage that the Republican-dominated court has done.” It only took Michigan voters one election to undo the damage of the Kelly Court by consigning her once again to the minority.
The professional Left hates the conservative, rule-of-law judges that voters keep electing and will do anything to keep them off the bench or marginalize them once they arrive. In Michigan, that means misrepresenting supposedly “scholarly” studies; sliming sitting justices with attack ads; trying to hijack the Michigan Constitution in what papers called a blatant “power grab” for the Court; promoting “merit” selection to eliminate voter input over judicial selection; and pushing recusal rules aimed solely at gagging conservative judges.
A Victory for the Rule of Law in Michigan
January 11, 2011
Michigan voters took a decisive turn in November, returning a rule of law majority to the Supreme Court and elected Rick Snyder as governor to end the disastrous anti-business, pro-trial bar experiment of the Granholm era. Yesterday, their choice began paying dividends when Governor Snyder appointed Michigan Appeals Court Judge Brian Zahra to fill the seat of departing Justice Maura Corrigan.
In accepting the appointment, Zhara pledged to follow “the rule of law” and respect “the principles of limited government laid out in our state and federal constitutions.” Governor Snyder’s decision will ensure that Michigan’s highest court is guided by the rule of law, not the rule of trial lawyers, and restore fairness and predictability to the state’s legal system – a critical step toward promoting job creation.
Great pick Governor.
Corrections Department: If It Looks Like a Duck…
January 11, 2011
In my recent Detroit News oped, I wrote that the Justice Kelly’s task force was being underwritten by the State Bar of Michigan. I was wrong. Actually, it’s being underwritten by the State Bar of Michigan Foundation. Both are run by lawyers; both are funded by lawyers; both share the same address. But they have different boards. In my view, a distinction without a difference. My thanks to Janet Welch, Executive Director of the State Bar of Michigan, for pointing out the error.
Quack, quack.
Preserving Democratic Elections In Michigan
January 8, 2011
The Detroit News ran my oped yesterday warning Michigan voters about a lawyer-led effort to keep ordinary citizens out of the judicial selection process. The News had to trim the piece slightly for space, so I’m posting the complete article below:
Judicial Reform Panel Bad For Michigan
In the wake of the November election, shortly after voters reinstalled a conservative majority on the state Supreme Court, soon-to-be ex-Chief Justice Marilyn Kelly suddenly decided she doesn’t like the way Michigan chooses judges.
To remedy this situation, Kelly has launched a task force to “identify failings” in our system of democratic elections, which gives ordinary citizens direct control over who sits on the bench. Yet already there is cause for concern that Kelly’s task force will become a Trojan Horse for “reforms” that will make our courts less accountable and even more political.
To start with, the task force itself is being funded by one of the most powerful special interests in the state – the State Bar of Michigan. According to news reports, the task force is being stacked with liberal activists such as former Democratic candidate for Governor Lynn Jondahl and former Democratic Party Chair Olivia Maynard. Another highly partisan special interest group – the Michigan Education Association – will also have a seat at the table. A few Republicans have been added for bipartisan window dressing, but the ideological direction of the panel is crystal clear.
Even more troubling – and more at odds with Justice Kelly’s pledge that the task force will operate “without preconditions” – is the appointment of former U.S. Supreme Court Justice Sandra Day O’Connor as honorary chair. Since leaving the bench, Justice O’Connor has lobbied across America to abolish democratic judicial elections and replace them with a system known as merit selection. Her commitment to merit selection is very deep and very political – in fact, Justice O’Connor’s endorsement was even used to make “robocalls” to Nevada voters this fall to promote an ultimately unsuccessful ballot initiative that would have installed merit selection in that state.
As a practical matter, judges seated under merit selection are not chosen by voters or by elected governors, but by a small committee, typically dominated by lawyers and legal special interest groups.
In Missouri, the birthplace of merit selection, three of the seven members of the Appellate Judicial Commission have ties to the Missouri trial lawyers’ lobby. In Tennessee, 15 of the 17 members of the state’s judicial nominating commission are lawyers. In Iowa, voters have filed a lawsuit challenging the state’s merit selection system because it gives too much power to special interests and denies voters an equal voice in selecting judges.
Justice Kelly claims her task force is intended to ensure greater accountability in the judicial selection process. But how exactly will judges chosen by a dozen or so lawyers be more accountable to the people they are supposed to serve than those selected by Michigan’s 7.3 million registered voters?
Kelly, O’Connor and others have criticized elections for introducing “politics” into judicial selection. But merit selection merely moves politics from out in the open to behind closed doors, where merit selection panels meet. As former Chief Justice Clifford Taylor has pointed out, since there will be politics in every judicial selection process, the only question is whether we want it to occur “openly and robustly in the public square with all people deciding which candidate has merit” or “behind closed doors with phony proclamations” that only “impartial measures” are being used, even as merit panelists work “to secure appointments for ideological allies.”
Justice Kelly had no problem with judicial elections or negative attack ads when they were used back in 2008 to unseat Chief Justice Taylor and put her in control of the court. She uttered not a peep when Michigan’s Democratic Party trashed her colleague Justice Bob Young with deceptive ads and false charges prior to the November election. Yet when voters exercised their democratic right to consign her (again) to the minority, suddenly she’s outraged and calling for upending Michigan’s Constitution.
The Kelly task force is not some good government reform mechanism, it’s a political power play, pure and simple. In any event, Michigan voters should beware of elite task forces bearing gifts, lest they find themselves sidelined when it comes to choosing some of our most important public servants – our judges.
Goodbye and Good Riddance Justice Weaver
December 1, 2010
Both the Detroit Free Press and the Livingston Daily rightly applaud the recent censure of Michigan Supreme Court Justice Betty Weaver by her former colleagues on the bench. Weaver concluded her notoriously disgraceful judicial career by retiring early to avoid giving Michigan voters the chance to dump her – but only after negotiating a scandalous deal with the governor to name her own replacement. Weaver also secretly taped private conversations with other justices and then leaked the recordings in a blatant, but unsuccessful attempt to torpedo Justice Robert Young’s re-election bid. Weaver’s departure (and the November elections) cleansed the court not only of her disdainful sideshow antics, but also of an activist majority committed to the trial bar’s agenda. That’s a giant step forward for both judicial dignity and the rule of law in Michigan.