An Appeal to a Half-Hearted “Merit” Proponent
November 12, 2010
Meryl Chertoff of the Aspen Institute’s Justice and Society Program has a thoughtful piece in the Huffington Post that purports to correct some “myths” about judicial elections, but is most useful for revealing the crumbling arguments behind “merit” selection.
Ms. Chertoff leads off by characterizing the Nevada ballot initiative that went down in flames last week as having “broad bipartisan support.” Apparently not broad enough! – it got hammered by a broad bipartisan majority: 58% to 42%. She then rolls out Sandra Day O’Connor, as if the mere appearance of such a mighty legal eminence should be enough to sway the ignorant masses into giving up their role in choosing the judges who serve them.
Alas, Ms. Chertoff informs us, most of what Americans “think they know” about judges “is wrong.”
Ms. Chertoff refers us to Article II and III of the Constitution for a little civics lesson in how federal judges are chosen. She suggests “merit” selection is a “hybrid” between the federal system and elections, but fails to point out the absolutely crucial distinction. Under the federal system, judges are nominated by a president elected by the people and confirmed by senators elected by the people. So critical is the good opinion of the people about the kind of judges that presidents and senators will favor that entire campaign speeches, TV ads and platform planks are dedicated to this issue alone.
This is precisely what the Founders intended. Read more
Why Won’t Justice at Stake Come Clean on Its Support for “Merit” Selection?
November 3, 2010
Justice at Stake is in a lather again because Glenn Beck (along with a recent Wall Street Journal editorial and op-ed) called attention to the $45 million campaign George Soros’ Open Society Institute has been waging to promote a host of schemes, including “merit” selection, that would radically change America’s courts. Among the goofier rebuttals is the claim that Justice at Stake ($5.8 million in Soros money) doesn’t really support “merit” selection. Give me a break.
As Ed Whelan pointed out the other day on NRO’s Bench Memos, Justice at Stake was a major contributor to Nevadans for Qualified Judges, which promoted … you guessed it! – “merit” selection. A casual review of the group’s October 19th contribution and expense report filed with the Nevada Secretary of State reveals that Justice at Stake was actually the second biggest contributor to the campaign during the most recent quarter, behind only casino mogul Steve Wynn’s Wynn Resorts.
I understand that Justice at Stake would prefer to keep all this quiet so it can keep perpetuating the myth that the “merit” selection movement is some kind of spontaneous public uprising, rather than a phony “grassroots” charade bought and paid for by a billionaire hedge fund tycoon. But does Justice at Stake really think that conservative groups don’t have access to the Internet and can’t instantly “fact check” its ridiculous claims?
Elections a Big Victory for Judicial Accountability
November 3, 2010
In addition to sending shock waves through Washington, voters on Tuesday sent another clear and unambiguous message: We want judges to be accountable to the people they serve.
In Nevada, voters crushed a ballot proposal that would have stripped them of their democratic right to vote for judges and transferred power to a tiny cabal of legal elites. With two-thirds of precincts reporting, according to a Las Vegas Sun report Question 1 was getting hammered 58% to 42%. Apparently, Sandra Day O’Connor’s incessant lobbying and 1:00 am robocalls backfired disastrously.
In Iowa, in a push-back against judicial arrogance, voters dumped three sitting Supreme Court justices who were up for retention – the first time in history that any justice lost a retention election. Voter outrage erupted when an activist court overstepped its authority by overturning the legislature’s ban on gay marriage and forcing the state to grant marriage licenses to gay couples.
In Michigan, conservatives regained control of the Supreme Court, with Robert Young and Mary Beth Kelly defeating trial lawyer-backed opponents. Rule of law justices will once again be a majority on Michigan’s high court.
(For additional state court election results, I recommend Ed Whelan/Gary Marx’s updates over at Bench Memos and the Legal Newsline’s rundown.)
As a recent report by the American Justice Partnership (which I run) reveals, the uber-liberal Open Society Institute has spent over $45 million in the last decade in an attempt to fundamentally alter America’s judiciary. Every so-called “reform” the Soros-bankrolled network and its leader, Justice at Stake, support, including “merit” selection, is aimed at reducing the power and input of ordinary citizens when it comes to deciding who will serve us on the bench. On Tuesday, voters loudly proclaimed that even George Soros’ millions can’t buy our courts.
Gotcha!
November 2, 2010
Bench Memo’s Ed Whelan nails Bert Brandenburg over at Justice at Stake for “misplaying the victim card” in his defense of Sandra Day O’Connor. Brandenburg ridiculously claims Justice at Stake is agnostic on the question of “merit” selection – but, Whelan points out, JAS is one of the main funders behind the “Yes on 1” campaign in Nevada which seeks to take away Nevadans right to vote for state judges and establish … you guessed it … “merit” selection.
Sandra Day O’Connor v. The People
October 29, 2010
Blockbuster op-ed in today’s Wall Street Journal that hits on the O’Connor-robogate scandal in Nevada, but also lifts the rock on her deeply political crusade for “merit” selection.
Attorneys David Rivkin, Jr. and Andrew Grossman point out that the “merit” selection campaign is being driven by $45 million from “liberal moneyman” George Soros – a figure revealed in recently released report, Justice Hijacked, by the American Justice Partnership (which I chair).
Rivkin and Grossman rightly connect the dots and conclude that support for “merit” selection is “an investment in judicial activism.”
“Selection boards get captured by trial lawyers, academics and antibusiness activists. They nominate plaintiff-friendly judges and state legislatures rubber-stamp them. Rather than play to the voters, would-be judges play to the special interests that dominate the commissions. This campaigning takes place behind closed doors. One Missouri judge called the process ‘exclusive, secretive and political.’”
Read the whole article.
The Strange Case of Justice O’Connor
October 29, 2010
The brouhaha over Justice O’Connor’s 1:00 am robo-calls to lobby Nevada voters over a pending ballot initiative keeps getting stranger. According to the Legal Times blog, Justice O’Connor now claims she “did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents.” I’m sure Nevadans awoken in the middle of the night are relieved – but it does raise the question: exactly what did Justice O’Connor think was going to happen with her recorded campaign statement? What did she “authorize” and when did she authorize it?
Justice O’Connor also wants us to know that she thinks her electioneering is “consistent with the Code of Conduct for U.S. Judges” – which frowns pretty severely on judges getting involved in politics. Very reassuring. But shouldn’t the determination of whether robo-calls are permitted under the Code of Conduct be made by someone – how do I put this delicately – a little more “objective” than the possible offender herself? Even O’Connor’s public defenders can’t seem to rally a very convincing argument on her behalf – mostly a variation of “she didn’t break the rules” – and even if she did the rules don’t apply to her anyway.
Ed Whelan at National Review Online’s “Bench Memos” points out that a court decision in which O’Connor participated right around the time of her robo-call flap could be construed as helping a political cause for which she advocates. While Whelan does not believe she made the decision specifically to advance her political views, he rightly calls the situation “an illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge.”
It’s Justice O’Connor Calling
October 27, 2010
For years, former U.S. Supreme Court Justice Sandra Day O’Connor has been making the case for removing politics from the judicial selection process. So what on earth is she doing waking up Nevada voters with robocalls at 1 o’clock in the morning to lobby them on how to vote on a November ballot initiative?
It’s one thing for the distinguished jurist to lend her prestige and intellectual firepower to the “merit” selection cause, even if I happen to disagree with her. But it’s entirely another for her to stoop to one of the crassest forms of political hucksterism. What’s next – signing direct mail pieces? Digging through trash cans doing some oppo-research?
Actually, the issue goes beyond just personal embarrassment – as mortifying as that must be. Ed Whelan over at National Review’s “Bench Memos” raises the question of a possible ethical breach. (Gary Marx, also at Bench Memos, asks a host of interesting questions regarding O’Connor’s activity in Nevada.)
Although retired from the Supreme Court, Justice O’Connor retains senior status and still sits in on some lower federal court cases. Just yesterday, Whelan points out, O’Connor cast the deciding vote in a Ninth Circuit case, siding with the plaintiffs, who included the League of United Latin American Citizens Arizona and the Arizona Hispanic Community Forum. Interestingly enough, Whelan writes, Justice O’Connor also taped a TV ad in Nevada, dubbed in Spanish to appeal to Hispanic voters.
The ethical code for U.S. judges clearly prohibits states that a judge “should not engage in any other political activity.”
I’m not judicial ethics expert, but robocalling voters sure sounds like “political activity” to me.
The Right Vote in Nevada: Trust the People, Not the Elites
October 25, 2010
Nevadans have gotten a lot of political pressure this election season from former U.S. Supreme Court Justice Sandra Day O’Connor, Justice at Stake and the whole George Soros-bankrolled “merit” selection campaign juggernaut to give up their right to vote for state Supreme Court judges and hand the power over to an elite group of lawyers.
Last week, the Las Vegas Review-Journal cut through the clutter with a clear editorial that eviscerates the gold-plated, focus-group-tested arguments of the “merit” selection crowd:
“There is scant evidence that creating a committee to select judges actually removes the politics from the process – in fact, it simply shifts the political concerns into a different arena, aiding those who are in good with the elites making the choices. In addition, Nevada voters over the long haul have done a pretty good job of quickly getting rid of the bad jurists who managed to slip past them.
“The bottom line: Those who favor this proposal simply don’t trust the voters. We do, and we are extremely reluctant to recommend that Nevadans cede some of the minimal power they have over the judiciary.”
Lifting the Rock in Nevada
October 22, 2010
Great editorial in the Wall Street Journal today, lifting the rock on the effort to abolish democratic judicial elections in Nevada and put “the responsibility for courts in the hands of a legal elite, instead of with voters or elected representatives.” As the editorial makes clear, the campaign is being pushed by George Soros-financed groups like Justice at Stake, which “see the state courts as the next frontier for moving [their] political agendas.” (The Journal also quotes a recent study by the American Justice Partnership, which I run, revealing that Soros has dumped over $45 million into anti-election campaigns nationwide.)
Justice at Stake and other Soros-bankrolled groups try to fool the public into believing that the move toward “merit” selection is some kind of organic, grassroots uprising. But Nevadans have already voted down “merit” selection proposals twice – and polls show 71% of voters prefer judicial elections over other systems. As the Journal cleverly puts it, “Nevada voters should send a message that their judiciary can’t be bought” – by George Soros or anyone else.
No “Merit” for Nevada
September 22, 2010
Former U.S. Supreme Court Justice, now uber-lobbyist for “merit” selection, Sandra Day O’Connor took her dog and pony show to Nevada this week to convince Nevadans to give up their right to select state judges and hand the job over to a commission of legal elites. In addition to the usual blah, blah, blah, which I have exhaustively refuted here before, Justice O’Connor made the following observation:
“The Constitution has been a great document in our country, and it does not allow for elected judges.”
It seems pretty clear here that Justice O’Connor wants Nevadans to believe that “merit” selection somehow has the imprimatur of the Constitution’s Framers. Which means one of two things must be true: Either Justice O’Connor does not understand the Framers’ intent to hold all public officials, even judges, accountable to the people they serve (unlikely) … or she is deliberately misleading Nevadans in order to promote her desired political outcome (unfortunate).
Federal judges are nominated by a President who is accountable to the people and confirmed by Senators who are accountable to the people. Entire campaign speeches and advertising campaigns are dedicated to assuring voters that a candidate will nominate/confirm judges in sync with voters’ broad desires for judicial restraint or judicial activism, as the case may be. Judges appointed under “merit” selection are chosen by a commission that is accountable to no one.
As James Madison –who knew a thing or two about the Constitution – wrote in Federalist 39, “the persons administering” our government must “be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves….” Madison believed it was “essential” that our government officials be chosen by “the great body of the people, not from an inconsiderable proportion or favored class of it….”
Under Nevada’s current system of democratic elections, judges are chosen by the “great body of the people” – i.e. the voters. Under “merit” selection, judges are chosen by a “favored class” – i.e. a commission controlled by lawyers. If Justice O’Connor really believes that lawyers are better at choosing judges than ordinary citizens, she should just come right out and say so, instead of hiding behind our Constitution’s Framers.