Countdown In Tennessee
April 7, 2009
With fewer than 90 days remaining before Tennessee’s judicial selection star chamber expires, legislators are beavering away on a reform package that can win enough votes to save the state’s “merit” selection system. The Tennessee Journal reports that House Republican Joe McCord is pushing legislation that would reduce the influence of legal special interest groups when it comes to picking members of the judicial selection commission. As Tennessee Lt. Gov. Ron Ramsey has pointed out, “by law” at least 75 percent of the commissioners who decide who will control one-third of Tennessee’s state government are hand-picked by special interests like the Tennessee Trial Lawyers Association. Under Rep. McCord’s bill, the House and Senate speakers would no longer be bound to pick from a list of special interest favorites.
Rep. McCord’s bill is a step in the right direction. The Nashville Post is reporting that Lt. Gov. Ron Ramsey will be presenting another step of his own when he introduces legislation this week that would create a gubernatorial appointment and retention election system.
The best solution: restore democratic judicial elections as called for in Tennessee’s Constitution.
Rescuing Democracy in the Volunteer State
March 9, 2009
Tennessee’s “merit” selection system is on life support and will expire on June 30 unless the legislature reauthorizes it. The Tennessee Journal reports lawmakers have filed 20 separate bills in an attempt to win enough votes to ensure its survival. Among the reforms offered:
- Requiring Senate confirmation of judicial appointments;
- Raising the threshold for retention to 60%;
- Revising the judicial nominating commission’s role to rating judges as “qualified” or “not qualified” rather than submitting approved slates to the governor;
- Bringing the commission out from behind closed doors by making its meetings public;
- Allowing the governor to request a second slate of nominees.
Needless to say, legal special interest groups are lobbying hard to maintain their privileged position when it comes to picking Tennessee judges. According to the newsletter, the state bar association even has its own bill, which would give the House and Senate speakers more leeway in picking commissioners, but would still guarantee that lawyers control all future “merit” selection panels.
Some of these reforms have merit (no pun intended), but they all miss the big picture. Tennessee’s “merit” selection system has failed because an unelected, unaccountable commission dominated by a single special interest group gets to decide who will control 1/3rd of the state government. The best reform of all would be to shut down the secret commissions and revert to the wisdom of Tennessee’s founders, who believed judges, like other public servants, should be chosen by the people.
Absent a return to democratic elections, here’s a compromise solution: Keep the commission, which would allow legal elites to weigh in with their combined wisdom, but let the governor pick any judicial candidate he/she believes is best qualified and not be bound by the commission’s selections. At least that way the governor would be directly accountable to the people of Tennessee for his/her judicial choices.
Hopes For A Return To Democratic Elections In Tennessee
January 28, 2009
Last year, the Tennessee legislature chose not to reauthorize the so-called Tennessee Plan for choosing judges, placing the system on course to sunset in mid-2009 unless state lawmakers reach agreement to revive the plan. Under the current system, a small committee dominated by legal special interest groups meets in secret to decide who will sit on the bench. If the plan lapses, voters will see their right to elect judges restored.
Yesterday’s Nashville City Paper has a good update on the debate, including a fascinating back-and-forth between Senator Mark Norris, the Republican Majority Leader, and Daniel Clayton, who runs the Tennessee Trial Lawyers Association. According to Sen. Norris, the issue is clear:
“The Constitution of Tennessee means what it says. Article VI, Sec. 3 states, ‘[t]he Judges of the Supreme Court shall be elected by the qualified voters of the State’….If the people of Tennessee wish it to be otherwise, then we should set in motion the process to amend the Constitution accordingly.”
Clayton responds with the standard argument that elections “turn our appellate judges into politicians” and denies that special interest groups – like his – wield undue influence over the judicial selection process.
“The current plan allows input from all of the major bar association groups across the state.”
I guess this “nobody here but us lawyers” stance is supposed to be reassuring, but it merely reveals how insular Tennessee’s judicial selection process has become. No one would dream of giving, say, auto mechanics or dentists the preeminent role in picking Tennessee’s judges. Since when did lawyers become so omnipotent that they deserve to decide who will control 1/3rd of the state government?
The standard retort from Clayton and his trial lawyer cronies is that voters still have the ultimate say over judges through retention elections. They expect us to be grateful that the lawyers allow us in the room after they’ve made all the important decisions. It’s like a gang of realtors getting together and deciding what house you’re going to live in, then telling you, “don’t worry, in eight years we’ll let you can decide whether you want to keep living there or not.”
Besides, retention elections are a sham. As Vanderbilt Law Professor Brian Fitzpatrick has pointed out, 145 out of the 146 judges who have stood for “retention” have been retained. Maybe Tennessee has just been blessed with supremely talented jurists over the past 30 years. Or maybe retention elections are just rubber stamps that don’t mean anything.
Stay posted as the debate heats up when the Tennessee legislature reconvenes on February 9.
Trial Lawyer Lobby Scores Several Big Victories — But Signs Of Hope In A Tough Election Year
November 5, 2008
Democratic state Supreme Court candidates – backed by the money and influence of the powerful trial lawyer lobby – scored several victories last night that could result in the rollback of important legal reform legislation and lead to a more lawsuit-friendly, anti-business environment. The trial bar also strengthened its grip on the judicial selection process in Kansas and Missouri. Yet rule-of-law judicial candidate also won races in many key states, providing signs of hope in an otherwise tough election cycle.
A 2008 election roundup:
Michigan: A “scathing” ad campaign financed by the Michigan Democratic Party along with Senator Obama’s landslide in the state helped Diane Hathaway upset Supreme Court Chief Justice Clifford Taylor. Ms. Hathaway’s victory will weaken the current rule-of-law majority on the court and worsen the business climate in Michigan’s already devastated economy.
Mississippi: Rule-of-law candidates captured three of the four Mississippi Supreme Court seats up for grabs. Although Chief Justice Jim Smith was upset by challenger Jim Kitchens, business-backed challengers Bubba Pierce and David Chandler defeated incumbents Oliver Dias, Jr. and Chuck Easley. Meanwhile, rule-of-law Justice Ann Hannaford Lamar beat back her challenger to retain her seat on Mississippi’s high court. The result should be a fairer, more predictable legal environment, which Gov. Haley Barbour believes is critical to attracting investment and jobs to Mississippi.
Louisiana: Greg Guidry won a pivotal seat on the state Supreme Court – a victory that is expected to help a rule-of-law majority take control of the high court.
Alabama: Republican Greg Shaw squeaked to victory over Democrat Deborah Bell Paseur in the race to fill the seat of retiring Republican Harold See. The Alabama Supreme Court will retain an 8-1 Republican majority.
“Merit” Selection: Residents of Johnson County, KS voted down a ballot initiative that would have restored the right to vote for county judges and ended the current “merit” selection process. In Greene County, MO, voters narrowly (by about 4,000 votes) approved an initiative to adopt “merit” selection, which has been used by all three Courts of Appeal and the Supreme Court in Missouri since 1945.
Wisconsin: Back in April, Wisconsin voters ousted Supreme Court Justice Louis Butler – who was appointed by a Democratic governor only after decisively losing his own bid for election and who promptly shifted the high court sharply toward the trial lawyer agenda.
All in all, the 2008 elections provide strong evidence that American voters support judicial candidates that will exercise judicial restraint by interpreting the law, rather than legislating from the bench. But as we saw in Michigan, the trial bar and supporters of an activist judiciary are both financially and philosophically committed to fighting this battle out state by state, race by race. The trial bar and its allies are not afraid to wage tough, nasty, expensive campaigns to shift the courts in their ideological direction. If the legal reform community wants to hold onto the gains we’ve made and even extend them, we must have that same level of commitment.
Who’s Watching The “Watchdogs”?
November 3, 2008
Justice at Stake is out with a press release decrying the “orgy of negativity” the group believes has turned the Michigan Supreme Court campaign between Chief Justice Clifford Taylor and challenger Diane Hathaway into “the nation’s dirtiest.” (full disclosure: my wife, Colleen, is managing Chief Justice Taylor’s campaign) The group’s executive director, Bert Brandenburg, says the Michigan race represents an attempt by “special interests, political parties and an emerging class of ‘superdonors’ to pack courts with judges to their liking.”
Of course, this charge would have more credibility if it weren’t made by a group bankrolled by a “superdonor” (hedge fund billionaire George Soros) committed to turning the judicial selection process over to a single “special interest” (lawyers) in order to “pack the courts with judges to their liking” (activists who will do the bidding of the trial bar but have trouble getting elected by the people). But Justice at Stake has a point.
Yes, campaigns at all levels of government have gotten too expensive and too negative. By Justice at Stake’s estimations, for example, Barack Obama raises almost as much in a single month as every candidate for state Supreme Court has raised in the past eight years. Surely Senator Obama has turned the quest for the presidency into a “financial arms race” with a campaign “defined by runaway spending” – to use Justice at Stake’s words. Despite this fact, no one would dare suggest that Americans be deprived of their right to vote for Senator Obama tomorrow or that the job could better be handled by a committee dominated by special interests. Why should we listen to Justice at Stake when they want to do precisely the same thing with our right to vote for state judges?
You see, the real target here is not campaign spending or even negative ads – it’s elections themselves. While Justice at Stake likes to pose as a nonpartisan judicial watchdog, the group is actually waging a highly-coordinated, well-financed campaign to end democratic judicial elections in states across America and impose “merit” selection schemes – where a small tribunal controlled by lawyers meets in secret to decide who should sit on the bench.
In my view, it’s not “Justice” at stake, but Accountability that’s at stake.
In the old days, “watchdog” groups protected the people from the powerful by shining the light of public scrutiny on government actions. How ironic – and disturbing – that a self-styled “watchdog” is now dedicated to ending public scrutiny over one-third of our state governments.
Judicial Elections or Potato Chips?
October 30, 2008
As expected, our friends at Judges on Merit (or as I like to call them, Judges for No Accountability) are hyperventilating again about the impact of campaign contributions on judicial races – the answer to which, in their mind, is to get rid of elections altogether. It’s bad enough that Michigan Supreme Court candidates have raised $2 million, but third parties have also chipped in $2 million for a total of $4 million – about what Barack Obama spent on his 30 minute infomercial last night.
The blog quotes a spokesman from the Michigan Campaign Finance Network concerning the “peril” that contributions have “considerable potential for conflict of interests and it certainly creates a troubling appearance.” No evidence of any actual impropriety can be found, but so what? Better to strip people of their constitutional right to elect judges and turn the job over to a “merit” commission, just to be safe.
But wait a minute. Wouldn’t putting a single special interest group (lawyers) in control of the entire judicial selection process also create a “troubling appearance?” And is $4 million for a campaign really scandalous enough to justify abolishing elections? In his column today, George Will reports that the $5.3 billion spent on the presidential and congressional elections in the 2008 campaign cycle is a billion less than Americans will spend this year on potato chips.
Will Judges on Merit come out against democratic presidential and congressional elections next? Or just against potato chips?
More From Kansas
October 21, 2008
As Election Day approaches in Kansas, legal elites are lining up in opposition to a ballot initiative that would restore democratic judicial elections in bellwether Johnson County. In today’s Kansas City Star, president of the Kansas City Metropolitan Bar Association Gregory Bentz urges voters to maintain the current “merit” selection system – where a committee of 14, including seven lawyers, meets to review candidates and develop a list of three nominees from whom the governor must choose.
As you’d expect, Mr. Bentz makes his case forcefully, and there is much to agree with in his analysis. Mr. Bentz wants judges who “decide individual cases based on the facts and the law, not which political party is currently in power,” and who in their right mind could disagree? Everyone wants (or should want) judges to be fair and nonpartisan in their application of the law. Yet Mr. Bentz offers no evidence why ordinary voters are not qualified to make the decision which judge is best able to meet that standard.
He leads off by grimly warning that if democratic judicial elections are restored, judges will no longer be chosen “based on merit, qualifications and experience.” Exactly what standard does he believe his fellow Kansas citizens will use if the power to select judges is restored to them? If we can trust voters to pick legislators to make the law and governors to enforce the law, there’s no good reason why we can’t trust them to select judges to interpret the law.
Mr. Bentz flatly states Johnson County judges will not longer be able to be impartial if they have to “seek endorsements from special interest groups just to get elected.” Yet under “merit” selection, prospective judges must win the endorsement of a 14-member commission that is controlled by a single profession – or, to put it another way, by one special interest group: lawyers. Does anyone really believe that the opinions of the seven lawyers who by law must dominate the commission don’t carry more influence than the opinion of the one doctor, or the one business executive, or the one plumber?
In America, it is an article of our democratic faith that no profession has a monopoly of wisdom over who is qualified to serve in public office. For public positions that require specialized training – like the judiciary – voters typically pay attention to the opinions of those citizens who share the same expertise, which is why the endorsements of various bar associations often carry great weight in judicial elections. But the minute we carve out a special privilege for one profession in deciding who will occupy public offices, we’ve made those public officials servants of that profession, not the people.
Under “merit” selection, judges are accountable to the lawyer-dominated commission that put them in power, which is just another way of saying they are accountable to themselves, which is another way of saying they’re accountable to no one. Retention elections, which Mr. Bentz promotes as a way for voters to “express their outrage” over a bad judge, hardly provide the level of accountability voters desire. In Tennessee, for example, since “merit” selection was adopted, 145 out of 146 judges have been retained by voters – a margin of success that would make Hugo Chavez envious.
At the end of the day, we all want the type of judges Mr. Bentz wants: professional, fair, impartial, nonpartisan. I believe the people of Johnson County are just as capable – or even more capable – of discerning which judges have those qualifications as a committee controlled by lawyers. On November 4th we’ll find out if they believe it too.
Debunking The Debunking In Wisconsin
October 21, 2008
Last week a Wisconsin assistant district attorney, Tim Kiefer, had a piece in The Capital Times that he claims debunks three myths about the “merit” selection system he favors over democratic judicial elections. Let’s take a look at these myths and his “debunks.”
Myth #1: Mr. Kiefer suggests that “merit” selection won’t favor political insiders because the terms of commissioners on the nominating panel will be staggered so no governor can pack it with “political cronies” and the governor “would be prohibited from selecting anyone” not approved by the commission. But if the commissioners are not accountable to the governor, then to whom exactly are they accountable? And what’s to stop this unaccountable commission from sending a slate of three “political insiders” the governor would be “prohibited” from ignoring? The truth is, “merit” selection does nothing to keep political insiders off the courts - it moves the politics behind closed doors rather than having it out in the open as with democratic elections.
Myth #2: Mr. Kiefer argues that “merit” selection won’t end democratic election of judges because voters will still be given a yes-or-no vote on retaining on judge. The problem is, retention elections routinely return incumbents at rates that would have made members of the old Soviet Politburo blush. In Tennessee, for example, since democratic elections were abolished, 146 judges have stood for retention election and 145 were returned to office. Only contested elections ensure that judges are actually accountable to the people they serve.
Myth 3: Mr. Kiefer protests that “merit” selection won’t put lawyers in charge of picking judges. The first state to adopt “merit” selection was Missouri, which has since become the model for other states favoring this system. In Missouri, judges for the high court are chosen by just seven people. Three of these commissioners are appointed by the state bar association and a fourth is the presiding chief justice, giving legal special interests control over the bench. The same is true in most other states that use secret selection, Arizona notwithstanding.
Despite Mr. Kiefer’s best efforts, in the end the “myths” about “merit” selection are actually facts and there’s no debunking them.
What Are Election Opponents Afraid Of In Minnesota?
October 21, 2008
Minnesota Lawyer posts videos from two candidates for Minnesota Supreme Court: incumbent Lorie Skjerven Gildea and challenger Deborah Hedlund. Both show serious, thoughtful candidates who are fully capable of discussing their qualifications in a dignified manner that is fully accessible to every fair-minded Minnesota voter. Is this the type of nasty judicial campaigning that would justify denying Minnesota citizens the right to vote for judges, as “merit” selection proponents favor? According to Minnesota Lawyer, both candidates have even set up Facebook pages to help voters understand their background and judicial philosophies. The horror!
Blunting Plans To End Democratic Judicial Elections In One Missouri County
October 16, 2008
Missouri Governor Matt Blunt came out against a ballot initiative to end democratic judicial elections in Greene County and turn the job of picking judges over to a small, unelected, unaccountable commission controlled by legal special interest groups. In an interview with Springfield, MO NBC affiliate KY3 News, Gov. Blunt made the common sense observation that:
I believe we benefit when people are allowed to select their elected officials. I don’t want to give up my vote and I’m opposed to the effort to take away the ability of people to elect their own judges.
Currently, Missouri Appellate and Supreme Court judges are chosen by a 7-member panel dominated by lawyers. The ballot initiative would impose a similar system in Greene County for the selection of circuit and associate circuit judges. The proposed 5-member commission would be made up of two citizens appointed by the governor, two lawyers appointed by the bar association and the chief judge of the Missouri Appeals Court for the southern district. Gov. Blunt said this arrangement would give legal special interest groups too much power when it comes to picking judges and potentially damage the region’s economy:
I think a lot of the supporters are indeed members of the trial bar that want to have more control over who the judges are. [Such a move] would undermine our ability to attract business to southwest Missouri and Greene County.
Proponents of ending democratic judicial elections in Greene County argue that under the plan, judges would be picked by merit, not politics. But in recent years, the commission that selects Appellate and Supreme Court judges has become highly politicized. Of the past 21 nominees to the Missouri Supreme Court, 19 (over 90%) have been Democrats. Apparently the commission believes the cure for too much judicial partisanship is to allow only one political party on the bench!
Gov. Blunt has tangled with the commission for sending highly political judicial candidates he believed did not represent his views or the views of voters who elected him. Yet under Missouri’s system, if the Governor does not choose one of the three candidates from a judicial commission’s list, the commission itself makes the appointment, removing any semblance of public accountability.
Just yesterday, the Kansas City Star’s Primebuzz reported, Governor Blunt chose one of the commission’s nominees to fill a vacancy on the Supreme Court. But in a statement, the Governor’s office made little effort to hide Gov. Blunt’s frustration with the system, noting that he selected only one of the seven commissioners who decide who will sit on the bench.
James Harris, Executive Director of Better Courts for Missouri, said the committee’s nominations left Gov. Blunt with little choice.
Once again, we are reminded of how flawed the Missouri Plan really is. After reviewing the judicial records and application of Judge Fischer, it is obvious that more qualified applicants were not nominated, leading us to believe that political favoritism and strong bonds to the MATA [the Missouri Association of Trial Attorneys] were the qualifications that propelled Judge Fischer to his newly secured position. Judge Fischer may have won a seat on the Court, but Missourians lost their voice to special interests in the process.
All of which further justifies Gov. Blunt’s opposition to putting legal special interest groups in charge of picking judges in Greene County.