Get Rid of the Smoke-Filled Room, Not the Judge

March 5, 2013

“Merit” selection proponents have long argued that their system ends potential conflicts of interest arising from judges hearing cases from lawyers who contributed to their campaigns.  Well, we can now scratch that claim.  In Missouri, the birthplace of “merit” selection, a bill has been introduced that would require judges to recuse themselves in cases argued by attorneys whose firms hold a seat on the “merit” commission that nominated the judge.  Gavel to gavel has the scoop.

The bill is a welcome admission that “merit” selection turns judicial nominations into a clubby, insider’s game controlled by elite lawyers.  But if we really want to end the potential for abuse and cronyism, why don’t we just get rid of the smoke-filled rooms and let the people pick judges instead of lawyers?  At least that way, judges would be accountable for their decisions and people could toss them out of office if voters felt they were too cozy with lawyer arguing cases before them.

Blame the Judge, Not the System

February 27, 2013

The conviction of Pennsylvania Supreme Court Justice Joan Orie Melvin on six counts of public corruption has unleashed a torrent of criticism.  Not of Justice Melvin, but of the system of democratic elections that elevated her to the bench.  Retired Superior Court Judge Phyllis W. Beck sums up this view:  “When a Supreme Court justice is convicted of misusing court resources for her judicial campaigns, something is fundamentally wrong with the system.  After all, this could only happen in a system where we elect our judges.”

Actually, cases of public corruption occur wherever there are public servants, regardless of how they are selected.  In the past, I’ve pointed to examples of ethically challenged judges chosen under “merit” selection in FloridaNew Mexico, and Missouri.  The simple truth is, no judicial selection system has been found that puts only angels on the bench.

Judge Beck traces the problem with elections to the fact that “most of the [campaign] money comes from lawyers and potential litigants who might appear before [judges].”  But her solution – putting these very same elite lawyers in a the proverbial smoke-filled room and letting them pick judges outside public scrutiny or accountability – is hardly a way to reduce the influence of lawyers in the selection process.

When it comes to cases of corruption or abuse of power, it’s time to stop blaming the system and start blaming the judge.

Back to the Drawing Board in Missouri

October 4, 2012

For years, reformers have been trying to break the monopoly the Missouri Bar and the state’s powerful trial lawyer lobby have on judicial selection.  Lawmakers succeeded in putting an initiative on the November ballot to reduce the power of legal special interest groups.  Yet when it came time to write the ballot language, Democrat Secretary of State Robin Carnahan – an opponent of reform – offered up a deeply misleading summary which leaves the impression that lawyers would have more power, rather than less – precisely the opposite of the initiative’s intention.

After trying and failing to have the biased language modified or replaced, reformers now plan to fight another day.  Said James Harris, Executive Director of Better Courts for Missouri, “we made a smart business decision and kind of paused and regrouped and decided we’re going back to the drawing board.”

While trial lawyer dominance over judicial selection will continue in Missouri for the time being, “merit” selection is clearly on the defensive in the state where it originated.  Hopefully the legislature will come back with a tighter initiative that can’t be killed by reform opponents before voters even have a chance to consider it.

Judge Allows Deceptive Ballot Initiative Description to Move Forward in Missouri

September 19, 2012

Missouri voters have the opportunity to reduce the power of legal special interest groups when they head to the voting booth in November.  But proponents of the current system – where the trial bar plays the key role in choosing who will sit on the bench – are working to block the modest reform proposal.  Earlier this week, a Missouri appeals court panel upheld the ballot language for the proposed constitutional amendment that gives voters a misleading picture of what the initiative actually does.

Since the Republican-led Legislature, which placed the initiative on the ballot, did not write its own summary language, the “task fell to Democratic Secretary of State Robin Carnahan.”  Supporters of the reform initiative argued in a lawsuit that the:

“[Carnahan] summary was insufficient and unfair – in part because it highlighted the potential for all the appointees to be lawyers when the governor could just as easily appoint no lawyers to the panel.  The suit claimed that Carnahan’s summary failed to mention what supporters contend would be the primary effect – reducing the influence of the bar by increasing the number of gubernatorial appointees to the panel.”

The fact that “merit” selection proponents have gone to such great lengths to mislead voters is a clear sign they know they are losing the intellectual argument.  Regardless of what happens in Missouri, the idea that judges should be chosen not by voters or their elected representatives, but by state Bar Association pooh-bahs and trial lawyer lackeys is clearly on the defensive.

Special Interest Groups Launch Campaign to Defeat “Merit” Selection Reform

August 28, 2012

Not surprisingly, the Missouri Bar is leading a campaign to defeat a November ballot initiative that would weaken the power of legal special interest groups – like the Bar itself – to hand-pick Missouri judges.  Under the state’s current “merit” selection system, groups like the Missouri Bar and the Missouri Trial Lawyers Association control the judicial nominating commission.

As a result, Bar/trial lawyer-cronies are often nominated to the bench.  The proposed change would allow the elected governor – not unelected lawyers – to have the controlling vote on the judicial nominating commission.  While hardly perfect, the reform would at least introduce some additional public accountability into a system that has been captured by special interest groups.

Missouri Supreme Court Ruling Strikes Blow to Tort Reform

August 1, 2012

Yesterday, the Missouri Supreme Court, in a 4-3 decision, struck down a 2005 state law capping non-economic damages at $350,000 in medical malpractice cases as infringing on “the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party” and therefore violating the right to trial by jury.

The ruling represents a major blow to the state’s tort reform advocates.  Moving forward, newly invigorated trial lawyers will seek greater damages for their clients, dramatically increasing medical malpractice premiums for doctors, who will have to shift the cost burden off to patients.  Former Missouri Governor Matt Blunt, in an interview with the Associated Press, said it best:  ”It’s devastating news, quite frankly, for health-care providers and patients and job-creators in the state.”

In response to the verdict, Tim Dollar [insert pun here], President of the Missouri Association of Trial Attorneys, told the Associated Press: “Everyone who believes in the constitution should be thrilled with this decision today.”

Well, we’re not. But proponents for “merit” selection in judicial elections surely are.  Over at the National Review’s “Bench Memos,” Carrie Severino finds the hands of the legal aristocracy all over this ruling.  “The trial bar’s influence appeared evident in the majority opinion’s reasoning,” says Carrie.

“The dissent explained: ‘[The decision overrules] more than 20 years of [Missouri] precedent that authoritatively decided this issue. The majority opinion reflects a wholesale departure from the unequivocal law of this state and leaps into a new era of law.’”

Keeping Judicial Selection A “Members-Only” Affair

July 23, 2012

The former President of the Missouri Bar warns that a ballot proposal to give ordinary citizens and their elected representatives more power to pick judges would enable political donors to “literally … buy their way into the process of judicial selection.”  Pure nonsense.  What the plan would do is weaken the power of one of the state’s most powerful special interest groups – the Missouri Bar itself.

Under the current Missouri Plan, the Missouri Bar by law has permanent 4-3 majority control of the Appellate Judicial Commission, which serves as the gateway for the judicial nominees.  No prospective judge in Missouri can make it to the bench unless he or she has kissed the rings of these commissioners and earned their seal of approval.  Just imagine seven Caesars sitting around a table giving a thumbs up or thumbs down to judicial candidates and you’ve got a pretty good idea how the process works.

How are these all-powerful commissioners chosen?  Well, three of the seven are handpicked in a “members-only” fashion by the Bar itself.  According to Missouri’s Procedures for Election of Judicial Commission Members, 30 days before the election of commissioners the Missouri Bar “shall certify … the electronic file of lawyers eligible to vote in the election.”  The file includes the names, Missouri Bar ID and Missouri Bar PIN for all lawyers eligible to vote.

“The Missouri Bar’s identification and The Missouri Bar PIN used for access to the Missouri Bar’s secure members-only web site shall be used to confirm eligibility to vote electronically.  The electronic election software shall not allow anyone to access the ballot who does not enter The Missouri Bar ID and PIN that were certified in the electronic voter file.”

“Members only” votes?  Restricted access to ballots?  Secret meetings where a single special interest group has a permanent monopoly on the judicial selection process.  Is this really a democratic way to choose public servants?

Dire warnings from the legal aristocracy about people being able to “literally … buy their way” into the judicial selection process need to be taken with a beach full of grains of salt – especially when they come from special interests that would never need to “buy their way” into the process because they already control it in the first place.

May 15, 2012

Great  follow-up from Carrie Severino on the opportunity Missouri voters will have this November to wrest judicial selection out of the hands of the trial lawyers lobby.  Who currently controls the all-powerful judicial nominating commission in Missouri, Severino asks?

“In Missouri, they tend to be members of the Missouri Association of Trail Attorneys (MATA).  MATA is also known as the organization most likely to challenge tort-reform laws or sue you if you happen to operate a profitable, job-creating business.  In fact, eight out of the last ten Bar-members of the appellate nominating commission in Missouri have been members of MATA.  Five of those eight were on the Board of MATA, and another two served as the organization’s president. (emphasis Severino’s)

Not surprisingly, Severino points out, the MATA-dominated commission produces a series of hard-left judicial nominees who can be counted on to carry the water for the trial bar once they reach the bench.

More on Missouri

May 11, 2012

Carrie Severino at NRO’s Bench Memos weighs in on the pending constitutional amendment in Missouri that would weaken the power of legal special interests when it comes to picking judges.  She insightfully quotes Alexander Hamilton’s Federalist 76 explaining why nomination by the state’s elected chief executive is preferable to an unelected committee.  For a fuller discussion of Hamilton’s thinking, see my 11/11/10 post.

Missouri To Vote On “Merit” Selection Reform

May 11, 2012

“A radical destruction of the judiciary.” That’s what one hysterical “merit” selection proponent has labeled a constitutional amendment in Missouri that would allow the democratically elected governor to appoint four members to the state’s judicial nominating board instead of the current three.  The proposed amendment will be on the ballot this November, after the Missouri House voted 84-71 to send it to voters.

So why such hysteria over such a modest reform?  Because under “merit” selection as currently structured, the Missouri Bar and other powerful legal special interest groups such as the trial lawyer lobby have a virtual hammerlock on judicial nominations.  The amendment would shift the balance of power to the governor and introduce at least a small measure of public accountability into the judicial selection process.

As the birthplace of “merit” selection, Missouri is also a closely watched bellwether.  “Merit” selection proponents, including the Soros-financed network, will launch a full court press to preserve the status quo.  It will be a tough fight – but Missouri voters have the best chance in decades to chip away at the power of special interest groups and reassert some control over the judicial selection process.

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