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
More Ethical Clouds Hanging Over O’Connor
April 11, 2011
The ethical cloud seems to be growing over former U.S. Supreme Court Justice Sandra Day O’Connor, with more questions being raised over whether her partisan political activities are coming into conflict with her decision to continue hearing cases in U.S. appeals courts.
Last election season, an embarrassed O’Connor was forced to apologize after 50,000 midnight robocalls using her voice were made to Nevada voters in an unsuccessful attempt to sway their votes on a ballot initiative to change the state’s judicial selection system. Now, the Associated Press reports, some ethics experts are questioning her decision to host a reception at the high court for a group engaged in a controversy over a proposed mine in Alaska.
Arthur Hellman, an ethics expert at the University of Pittsburgh law school, told the AP he found the reception troubling because “we’re talking about political activity. It’s a lobbying effort and she is lending her considerable prestige to that effort.”
Senior Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia has also criticized O’Connor for her decision to wade into the Nevada political fray: “the issue of whether state court judges should be chosen or ratified by election or solely by appointment is a political issue on which serving federal judges should not publicly advocate, one way or the other.”
O’Connor also appeared at an Iowa conference on judicial elections in the midst of the mostly hotly contested retention elections in that state’s history – which ultimately led to the dismissal by voters of three Iowa state Supreme Court justices. While other federal judges had also been invited to attend, all but O’Connor decided to stay away after receiving “an informal opinion that their presence would violate the judiciary’s ethics code.”
According to the ethics expert Hellman, it’s time for O’Connor to decide whether she “wants to engage in this level of political or politically related activity” – or whether she should stop participating in court cases.
Motion affirmed!
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.
Let’s Judge Sandra Day O’Connor by Her Own Standards
November 2, 2010
Justice at Stake’s Bert Brandenburg has a piece calling on everyone to pleeeaasssee “lay off” former U.S. Supreme Court Justice (and current “merit” selection lobbyist) Sandra Day O’Connor. Justice O’Connor got caught up in a little scandal last week after she woke up 50,000 Nevadans around 1:00 am with robocalls urging them to support a ballot initiative to end democratic judicial elections.
She tried to head off personal embarrassment by claiming she never authorized her taped message to be used as political telemarketing. But several outside commentators (including Ed Whelan and Gary Marx over at NRO’s Bench Memos and in a great oped by lawyers David Rivkin and Andrew Grossman) questioned whether her electioneering ran afoul of the judicial code of ethics. You see, although Justice O’Connor retired from the Supreme Court of the United States she has not resigned from the federal bench. She still hears cases when filling in on the federal bench and in just the past month had ruled on a case which could conceivably influence some Nevada voters.
This is where Brandenburg cries foul. He scolds O’Connor’s critics for “imply[ing] corruption” and then distancing themselves – of committing a “drive-by political hit” and conducting a “political mugging.” Talk about hypocrisy!
In making her “merit” selection campaign pitch, Justice O’Connor constantly impugns elected judges with absolutely no evidence of wrongdoing whatsoever. She casually slimes honorable judges, claiming “the question is one of perception” and arguing that judicial elections “give an appearance at least that there might not have been a fair and impartial judge sitting on the case.” Having implied corruption and waded into a political fight over the direction of our courts, she and her allies now want to hold her above criticism, even after creating her own “perception” or “an appearance at least” that there is a conflict between the work of Sandra Day O’Connor-federal judge and Sandra Day O’Connor-lobbyist for “merit” selection. Justice O’Connor wasn’t mugged – she was hoist by her own petard!
Before joining the bench, Justice O’Connor was a politician, so I suspect she doesn’t need to hide behind Bert Brandenburg. But if she’s going to keep taking political stands, she’s got to take the heat like everyone else – and she should also resign her position on the federal bench to end her “perception” problem.
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.
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.
No “Merit” for Texas
June 1, 2010
The Houston Chronicle has an editorial advocating an end to democratic judicial elections in Texas. Echoing former U.S. Supreme Court Justice Sandra Day O’Connor, the Chronicle calls for establishing a “nonpartisan commission” that would nominate acceptable candidates, followed by retention elections to decide whether judges should stay on the bench.
The idea that the “merit” selection panels can be “nonpartisan” is a pleasant fiction that is clearly and easily refuted by the experience in other states. In Tennessee, lawmakers nearly let the entire “merit” selection system expire because it had become so deeply partisan. In Missouri, a petition is working its way onto the November ballot that would bring back democratic elections, following rising public frustration with a “merit” selection system that has been completely hijacked by the state’s powerful trial lawyers lobby. In Florida, the state NAACP actually filed an amicus brief with the state Supreme Court charging that “the specter of racial discrimination has been raised” by the “merit” commission’s actions.
The Chronicle doesn’t say how Texas will avoid similar pitfalls – probably because it can’t. Exactly what immaculate conception is going to give rise to a truly “nonpartisan” commission? Any commissioners appointed by the governor or legislators can’t be considered “nonpartisan” if that word has any meaning. Any commissioners selected by legal special interest groups – the state bar association, the trial lawyers association – will bring their own biases to the job.
Every leading public servant in America is inherently political. That’s what it means to live in a democracy. The key is to make public servants – including judges – accountable to the people. Democratic judicial elections ensure this accountability by giving citizens the power to remove public servants they deem should be replaced. “Merit” selection destroys it by making judges accountable to no one.
“Merit” Selection Debated in Arizona
May 24, 2010
This past weekend, the Prescott, Arizona Daily Courier debated the pros and cons of “merit” selection. Arizona’s “merit” panel is, of course, frequently held up by former Supreme Court Justice Sandra Day O’Connor as worthy of emulation by other states.