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.
October 14, 2008
Yesterday I posted the Detroit News’ endorsement of Michigan Chief Justice Clifford Taylor. Today, the Detroit Free Press also calls for Taylor’s re-election. There’s much to quibble with in the Free Press’ less than hearty endorsement, but they’re correct in concluding that Chief Justice Taylor’s opponent, Wayne County Circuit Judge Diane Hathaway, “can’t even articulate a judicial philosophy she’d bring to the court” and “would likely be out of her depth on the high court…”
(Full disclosure: my wife, Colleen, is managing Chief Justice Taylor’s campaign.)
October 13, 2008
The Detroit News is out with a strong editorial endorsing the re-election of Michigan Supreme Court Justice Clifford Taylor. (Full disclosure: my wife, Colleen, is managing Chief Justice Taylor’s campaign). Some highlights:
The chief justice is one of a group of jurists who in recent years changed the direction of the court – mostly for the better.
The Supreme Court’s majority, including Taylor, have come under a lot of criticism from those who wish the court would return to being more friendly to trial lawyers. But the voters have rendered their verdicts on all of the majority’s members at least once.
Judge Hathaway [Taylor’s opponent] … favored the ill-advised Reform Michigan Government Now! ballot proposal, which was ruled off this fall’s ballot by both the appellate and Supreme Court. The plan’s backers admitted in their own presentations, after all, that the proposal was designed to tilt state government in favor of one political party.
Our support goes to Clifford Taylor.
October 10, 2008
John Jay Hooker, a 78-year-old retired Tennessee attorney, has spent the last 10 years challenging in court the constitutionality of Tennessee’s “merit” selection system and calling for the restoration of democratic judicial elections. For his troubles, reports the Tennessean, the legal establishment wants to take away his law license.
Mr. Hooker and many other legal scholars argue that handing power over who sits on the bench to a 17-member commission that is controlled by legal special interests and meets behind closed doors doesn’t satisfy Tennessee’s constitutional requirement that all judges be “shall be elected by the qualified voters.”
Tennessee’s secret selection scheme was adopted in 1971. The plan was proposed as a constitutional amendment in 1977, and voters promptly rejected it. Blogger Bill Hobbs has raised the critical, but unanswered question: If the plan is constitutional, why was there any need to amend the Constitution to approve it?
October 10, 2008
Matthew Schneider, a visiting professor at Michigan’s Thomas M. Cooley Law School, has just issued a serious, scholarly analysis of Michigan’s Supreme Court. Among his conclusions:
… there is broad agreement among conservative legal scholars that Michigan’s highest court has greatly advanced the delicate art of being faithful to the law while, at the same time, giving respect for the proper balance between the branches of government and the rights of the people.
In his analysis, published by the Federalist Society, Professor Schneider credits Michigan’s current Supreme Court with curbing the activist agenda many justices brought to the bench beginning in 1970. For two decades, until the election of Governor John Engler, judicial activism reigned, with justices routinely “overruling and disregarding long-standing court decisions in certain politically-sensitive or policy-oriented areas of the law.”
Professor Schneider’s important new study should be required reading for anyone seeking to understand why Michigan’s high court is consistently rated among the best in the nation
October 9, 2008
Would the National Rifle Association (NRA) endorse a candidate who wanted to “ban hunting” and “take away our rights” to hunt on private property? Of course not. But that’s the lie being circulated by Judge Diane Marie Hathaway in her campaign to unseat Michigan Chief Justice Cliff Taylor. (Full disclosure: my wife, Colleen, is managing Chief Justice Taylor’s campaign)
Judge Hathaway is too ashamed to make this claim to Chief Justice Taylor’s face. That’s why her campaign is spreading it through robo calls and sleazy brochures in rural counties. The idea is to evade the media fact checkers and hope that no one will call her on the lie. It won’t work.
Both the robo calls and the brochures refer to a case (Czymbor’s Timber v. City of Saginaw) that addressed the question of the regulatory authority of Michigan’s Department of Natural Resources (DNR). In this case, the Supreme Court recognized the Michigan Department of Natural Resources’ authority to regulate hunting in Michigan. This case dealt with the situation of a city hunting within its city limits. The court found that the local government can be overruled by the DNR. But here the DNR had not done so.
Chief Justice Taylor has always upheld the Constitutional right to bear arms. That’s why the NRA endorsed him. The question now is whether the Michigan media will do the responsible thing and call out Judge Hathaway on her campaign lies.
October 9, 2008
The West Virginia State Journal takes a long look at yet one more example of the unholy alliance between state Attorneys General and wealthy trial lawyers. Four years ago, West Virginia Attorney General Darrell McGraw agreed to a $10 million settlement in the state’s lawsuit against the maker of OxyContin – a painkiller so widely abused in the Mountaineer State it became known as Hillbilly Heroin. Mr. McGraw, a Democrat, is locked in a tough re-election campaign – and he’s facing an opponent that wants to know what happened to the $10 million.
That’s where the fun starts. Right off the bat, a one-third cut ($3.3 million) went to a handful of personal injury lawyers, including one run by the former Chairman of the West Virginia Democratic Party. Cozy contingency fee arrangements were outlawed in federal cases last year because of what Lisa Rickard of the Institute for Legal Reform called “the perverse incentive” of “combining the power of the government with the personal financial interest of some plaintiffs’ lawyers.”
What about the other two-thirds? That’s where it gets murky. In a normal lawsuit, the bulk of the settlement money would go to the clients – in this case three West Virginia state agencies. Yet two of the clients have yet to see a penny and the third has gotten a pittance. Instead, according to Steve Cohen of West Virginia Citizens Against Lawsuit Abuse, AG McGraw “basically converted the proceeds from the settlement into his own slush fund.”
The State Journal has asked Mr. McGraw’s office to provide a list of disbursements from this fund. So far, none has been forthcoming. The paper might be waiting a while.
“There’s six months (worth of disbursements) that for whatever reason somebody’s misplaced,” said the AG office’s comptroller.
Critics charge the funds are being used to further Mr. McGraw’s re-election bid. In the past, they paper notes:
the attorney general has used settlement money to buy television commercials featuring him. In one case, funds were used to pay for a fleet of “mobile offices” that had McGraw’s name emblazoned on the sides.
Here’s a case where a state’s legal system and attorney general’s office was abused to pad the pockets of trial lawyers and further the incumbent AGs re-election prospects.
Where are all those nonpartisan, good government groups when you need them?
October 7, 2008
Once again, the blogosphere has caught the mainstream media asleep at the switch. RightMichigan.com does a devastating dissection of the lies being peddled by opponents of Michigan Supreme Court Chief Justice Cliff Taylor. A left wing group has taken out billboard ads on the side of busses across the state claiming that a University of Chicago study ranks Chief Justice Taylor’s court as the worst in the nation.
The charge is outrageously false – even by today’s rock bottom campaign standards. But even more outrageous: Michigan’s media, which fancies itself a vigilant truth squad against campaign falsehoods, has yet to call them on it.
As RightMichigan points out, the reference to the Michigan concerned the 1998-2000 Supreme Court. That court was controlled by Democrat Conrad Mallet and liberal Betty Weaver. It was a Democrat court, NOT a Taylor court. The four justices that now make up the Republican majority on today’s court (Justices Taylor, Markman, Young and Corrigan) were not even on the court for 60% of the time the study covered.
Oh, and the “study” is unfinished and has never been “published” by the University of Chicago. It’s just a working draft.
In a shameful act, the League of Women Voters plans to promote these lies at an upcoming forum featuring Michigan Democratic Party hacks and other groups that don’t care how low they have to stoop to defeat Chief Justice Taylor. Guess who’s footing the bill? None other than the Open Society Institute – the political arm of hedge fund billionaire George Soros.
As readers of American Courthouse well know, Mr. Soros is financing a multi-million dollar campaign in states across America to try to abolish democratic judicial elections. The network of groups sponsored by the Open Society Institute always pose as non-partisan, good government organizations, aided of course by a gullible (or collusive) media. By joining in the gutter campaign to defeat Chief Justice Taylor, these groups have demonstrated once and for all that they have no problems with partisan courts – as long as they’re controlled by partisans who support their political agenda.
October 6, 2008
An editorial in Wisconsin’s Capital Times strikes back against the “campaign” launched by another paper, the Wisconsin State Journal, to end democratic judicial elections and adopt a “merit” selection system. While I disagree with just about everything the Capital Times says about the decision by Wisconsin voters to oust Justice Louis Butler and its call for public financing, they hit the bullseye when it comes to the flaws with “merit” selection. Some highlights:
The theory of the State Journal and its allies is that the voters are to blame for everything that ails our electoral process.
This convoluted calculus, if taken to its extreme, would eliminate elections altogether – replacing them with a sort of meritocracy that owes more to King George than George Washington.
Eliminating elections for the Supreme Court and replacing them with a merit selection system – in which legal and political insiders would choose top judges while citizens sit on the sidelines – does not get special-interest groups out of the process. It gives the process over to those who are most likely to do the bidding of interested organizations and individuals.
Moving to a system of appointing justices would do nothing to improve the reputation of the court. In fact, a so-called “merit selection” system would cause Wisconsinites to see the state’s top bench as an elite, insider-dominated institution rather than the people’s court.
September 26, 2008
Surprise, surprise. Prime Buzz reports that the Missouri Bar Association has come out against a proposal by gubernatorial candidate Kenny Hulshof to reduce the influence of legal special interest groups (like the Bar Association) in selecting Missouri judges. Prime Buzz has posted the full text of the Bar Association’s statement. You can read my previous post on the Hulshof plan here.
The Missouri Bar Association protests that it is a “diverse organization” that represents “every practicing lawyer in the state.” But the fact that some Bar Association members got their law degree at the University of Missouri while others got their JDs at Washington University doesn’t really make the group diverse. And why do lawyers believe they should enjoy some special privilege when it comes to choosing who will control one-third of the state government? Don’t teachers have a right to an equal voice? Or policemen? Or firefighters? Or doctors? Or CPAs? Or small business owners?
Yes, the Missouri Bar says, but “voters have the final say” because they get a yes or no vote on whether to retain judges once in office. If anyone knows the answer to this question, please let me know: Since the Missouri Plan was adopted in 1940, how many sitting judges have lost retention elections? I know since Tennessee ended democratic elections in the 1970s, 145 out of 146 judges have been returned to the bench.
But the current system “reduces the excesses of partisan politics” in choosing judges, the Bar claims. Well, out of the last 21 nominees to the state Supreme Court chosen by the non-political commission, 19 have been Democrats. Last time I checked, Missouri Democrats didn’t outnumber Republicans 90% to 10%. And Governor Matt Blunt has been locked in a political battle with the state’s “nonpartisan” nominating commission virtually since he took office. If partisanship is the standard by which to judge, then the Missouri plan has been an abject failure and deserves to be radically reformed or thrown out entirely.
My own strong preference is for democratic judicial elections to ensure that judges are accountable to the people they serve. But the Hulshof plan is an acid test for special interest groups: Are they really in favor of a nonpartisan commission picking judges? Or do they really just want to protect their own power in choosing who sits on the bench?