“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.
O’Connor Slimes Illinois Justice
May 20, 2010
Former U.S. Supreme Court Justice Sandra Day O’Connor brought her dog-and-pony show to Illinois this week, urging members of the Chicago Bar Association to push for abolishing democratic judicial elections. In making her case, O’Connor slimed Illinois Supreme Court Justice Lloyd Karmeier for voting to overturn a $1.2 billion class action verdict against State Farm Insurance, alleging it was only because the company had contributed to his campaign.
- Did O’Connor offer any reason why the State Farm verdict should have been upheld? No.
- Did O’Connor mention that the vote to overturn the State Farm award was unanimous? No.
- Did O’Connor acknowledge that the Illinois Judicial Inquiry Board examined the matter and found no ethical violation by Justice Karmeier? No.
- Did O’Connor impugn the integrity of the other 6 Justices who voted the same way as Karmeier? No.
- Did O’Connor note that Justice Karmeier has a history of voting against Powerball-sized damage awards? No.
- Did O’Connor point out that Illinois is known as a class action haven trial lawyers exploit to win outrageous awards (and fees)? No.
In his dissent in Caperton, Chief Justice Roberts predicted that the decision would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”
I’ll bet Chief Justice Roberts never thought the main spouter of “groundless” allegations would be the Justice whose Supreme Court seat he was initially nominated to fill.
More Trouble for “Merit” Selection in Missouri
May 12, 2010
The recognition that “merit” selection is fatally flawed in its birthplace of Missouri appears to be growing.
Professor Chad Flanders of St. Louis University School of Law and law student Grant Gaumer have a piece in today’s St. Louis Post-Dispatch outlining a proposal to dump “merit” selection in favor of the federal model for picking judges. As Flanders and Gaumer point out:
“ … the [federal] method of selection is open and transparent and connected to the Governor and legislators, all accountable to the people.”
Accountability is crucial because, according to Flanders and Gaumer, “there is a decided lack of transparency” in the “merit” selection system which allows “political bias [to] creep in.”
Creep in? In Missouri, political bias is the driving force behind most judicial nominations – a phenomenon seen under both Democrat and Republican governors. The Flanders/Gaumer proposal is also helpful because it highlights the distinctions between the federal system and “merit” selection, which “merit” proponents, including Justice Sandra Day O’Connor, often try to blur.
The Use and Abuse of America’s Founders in Wisconsin
May 6, 2010
The Wisconsin State Journal – with an assist from former U.S. Supreme Court Justice Sandra Day O’Connor – tries to drag America’s Founders onto the side of “merit” selection. James Madison must be rolling over in his grave.
As I’ve pointed out many times before, in Federalist 39, James Madison wrote:
“It is essential [Madison’s emphasis] to such a government [a democracy] that it be derived from the great body of society, not from an inconsiderable proportion, or favored class of it.”
Under “merit selection,” judges are chosen NOT by “the great body of society” (i.e. the people). Instead, they are selected by a tiny committee – in other words, “an inconsiderable proportion” of society. Read more
What’s the Best Way to Educate Voters?
April 7, 2010
“The root of the problem,” former U.S. Supreme Court Justice Sandra Day O’Connor recently told a group of Pomona College students, “is ignorance about the role of the judiciary. The long-term solution to that problem is education….And in order to do this we need to bring real and meaningful civics education back into our classrooms…” (Audio of speech available here).
Hey, I’m all for teaching “meaningful civics education” in our schools, rather than the drivel that too often passes for history (excuse me, Social Studies) in today’s classrooms. But there is another very powerful tool our democracy’s Founders devised to overcome voter “ignorance” – to use Justice O’Connor’s harsh phrase. That tool is called an election.
Elections educate voters about the ideas that animate our public servants. They help us discern what character traits our public officials bring to their high offices. They ensure that every interested voter has access to the information he/she needs to make informed choices.
Unfortunately, Justice O’Connor opposes elections – at least when it comes to choosing who controls our state judiciaries. Instead, she supports a system where a tiny handful of elites, rather than millions of voters, meet in secret to determine who is worthy to hold some of the most powerful jobs in government. This group of elites is unelected and unaccountable, with no obligation to explain its reasoning to ordinary citizens, but instead simply emerges from its Mt. Sinai with tablets inscribed with the list of names of our judges, leaving the rest of us to gawk and wonder at their magnificence.
Can anyone seriously believe that this so-called “merit” selection system is a better way to educate voters than democratic elections?
Rolling the “Merit” Selection Rock up the Hill in Maryland
March 5, 2010
Voters in Maryland have twice blocked attempts to disenfranchise themselves when it comes to selecting judges. They have twice voted down proposals to end democratic judicial elections and adopt a “merit” selection system. But the “merit” selection crowd is pushing the rock up the hill once again – this time with the help of Attorney General (and future, would-be governor) Doug Gansler and former U.S. Supreme Court Justice Sandra Day O’Connor. (The Baltimore Sun has an excellent write up here and you can also read an op-ed of mine the Sun was kind enough to print here. )
“The independence of the judiciary is something we all ought to care about,” Justice O’Connor told a legislative panel in Annapolis, MD. It’s tempting to pass by this bromide with a thoughtful nod of the head, but there’s actually an interesting point here.
Everyone says they want judges to be “independent” – but independent from what? In my view, voters want judges who are independent from the influences of special interests – they want judges who will reach fair and impartial decisions. It’s up to voters in democratic elections to evaluate whether a judge has met this standard. “Merit” selection, however, delivers an entirely different kind of independence – namely judges who are “independent” from (and totally unaccountable to) the people they serve.
Baltimore attorney William H. “Billy” Murphy nailed this point, telling the Sun reporter that under “merit” selection voters…
“…have no idea what is going on behind closed doors. With the electoral system, you will know. If you don’t like it, and it stinks, you can do something.”
When America’s Founders wrote our Constitution, one of the primary goals was to protect the people from the government. “Merit” selection proponents want to turn that principle on its head by protecting the government (our public servants on the bench) from the people.