More Democracy, Not Less In Wisconsin
February 8, 2010
A Madison, Wisconsin Capital Times editorial zings their brethren at the State Journal for its “misguided crusade” for an “unelected judiciary.” The whole thing is must reading, but a few points stand out. Among them:
“There is no evidence of significant support on the part of citizens or their elected representatives for the idea of creating a so-called ‘merit selection’ system, which would give political and legal elites the power to pick judges …”
This is an absolutely critical insight. The entire “merit” selection movement is not a grassroots uprising, but a manufactured campaign financed by the George Soros Institute for an Unaccountable Judiciary (aka Justice at Stake). The game plan is by now depressingly familiar: Commission a poll that suggests people are concerned about the influence of campaign contributions in judicial races. Then make the preposterous leap to the conclusion that elites, not ordinary people, ought to have the power to pick judges. And hope no one notices.
Of course, people are concerned about the influence of campaign cash on every elected office – from dog-catcher to president. Channeling progressive patron saint Robert La Follette, the Capital Times writes “the cure for what ails democracy is more democracy.”
That’s just another way of saying … when lawyers choose, the people lose.
CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough
January 26, 2010
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.
More on Wisconsin’s Recusal Standards
January 22, 2010
Our friends over at Justice at Stake and the Brennan Center are huffing and puffing because the Wisconsin Supreme Court decided not to adopt a recusal standard proposed by special interest groups that would have triggered an automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. Instead, the Wisconsin high court ruled that campaign “donations, endorsements or independent spending around elections are not enough to force judges off cases.”
JAS and Brennan believe the decision is in “clear conflict” with the U.S. Supreme Court’s Caperton ruling. I guess we’ll find that out during the litigation scrum that is sure to follow. What is abundantly clear is that recusal standards have become a back door way for special interest groups to try to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
In Wisconsin, the process heated up after voters unceremoniously dumped former liberal Justice Louis Butler. Since then, special interest groups have failed to replace democratic judicial elections with “merit” selection – where lawyers, rather than voters, choose judges. Now they’ve failed in an attempt to use recusal standards to hinder the ability of voters to exercise their First Amendment rights by contributing to the candidates of their choosing.
Those First Amendment rights got another boost yesterday when the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (or labor unions for that matter, “are entitled to the same right that individuals have to spend money on political speech for or against a candidate.”
I can already hear the predictable howls of protest that corporations will now be free to “buy” any public office they want, including judgeships. The proposed solution will be just as predictable: Instead of having gullible, easily misled voters pick judges, let’s turn the job over to a small group of elites – all of whom, it goes without saying, are smarter than mere citizens anyway.
Wisconsin Supreme Court Debating Recusal Rule
January 21, 2010
Does a $1,000 campaign contribution automatically compromise a judge’s integrity? By a slim 4-3 majority, the Wisconsin Supreme Court appears to believe the answer is “no.” A final vote on a new recusal standard is expected today, but the Court issued a proposed order earlier this week.
In addition to rebutting the insulting assertion that their souls could be bought for a measly $1,000, the majority also recognized the chilling effect such a rule would have on the rights of voters to participate in the election of the public servants who control the judiciary:
“Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs a judge’s integrity. It would have the effect of discouraging the broadest possible participation in financing campaigns by all citizens of the state …”
Recusal standards for state supreme courts have become a new battleground. Special interest groups that cannot get their favored candidates elected use them to try to shape the ideological composition of the courts. In Michigan, for example, the high court recently adopted recusal rules that will make it easier for trial lawyers to remove conservative judges from their cases.
The Milwaukee Journal Sentinel editorializes that “votes are not fools” and that the real issue is “whether Supreme Court justices will be perceived as just your ordinary common politician, thought to be willing to dance with the folks whose big money brought them to the ball.” (Hat tip: Gavel Grab.)
The idea that every other public official is merely doing the bidding of “big money” contributors is a pretty strong indictment. But if the Journal Sentinel has any actual evidence to suggest that Wisconsin’s justices are offering votes as quid pro quos for contributions, they’re keeping it to themselves.
The fact is, if a judge is truly selling her vote, Wisconsin’s judicial code of conduct surely provides ample means to remove her. If Wisconsin voters – who are “not fools” after all – believe a judge is too cozy with his contributions, they can get rid of him in the next election. Fortunately, Wisconsin’s Supreme Court majority seems to understand that there’s no need to undermine democracy to protect the public from a corrupt judge.
Federal Appointment for Louis Butler: More “Open Defiance” of Wisconsin Voters
November 19, 2009
As American Courthouse readers will recall, Wisconsin Supreme Court Justice Louis Butler was unceremoniously dumped by Wisconsin voters last April – the first sitting justice to lose his/her seat in four decades, a terrific Wall Street Journal editorial tells us. His reward for being the favorite martyr of the trial bar/”merit” selection crowd? A lifetime appointment to the federal bench by President Obama.
Butler’s defeat was hardly surprising; in 2000, Wisconsin voters overwhelmingly rejected him by a 2:1 margin. Governor Jim Doyle’s decision to go ahead and appoint Butler to the court anyway “overturned the clear results of the election,” wrote Charles Sykes for the Wisconsin Policy Research Institute and was in “open defiance” of the wishes of the people of Wisconsin.
Now, as the Journal points out, Wisconsin voters “will have years to contend with the decisions of a judge they made clear they would rather live without.” Earlier decisions by Justice Butler included rulings that “dismantled” Wisconsin’s medical liability reform and invented crackpot new theories opening innocent businesses to more abusive litigation. No wonder he was thrown out.
The Journal notes that Butler’s nomination shows “contempt for Wisconsin voters,” which is certainly true. It also signals that when it comes to the Obama Administration’s judicial nominations, special interest groups like the trial bar and the American Bar Association will be calling the shots.
Butler’s April 2008 defeat kicked off a national debate over judicial elections. The election results were used by the ABA and the trial bar in a push to end democratic state judicial elections and replace them with so-called “merit selection” committees. Wisconsin continues to support judicial elections and many in the state see the ABA for what it is: the last group the American people should put its faith in to produce fair jurists. It has become nothing more than a rubber stamp for the left…and that’s not right.
Any “Merit” In Wisconsin?
September 16, 2009
The Wisconsin State Journal rolled out another editorial calling for an end to democratic judicial selections and the adoption of “merit” selection - where a privileged class of elite lawyers decides who will sit on the bench. “Introducing partisan elections to the judicial branch,” the editorial solemnly intones:
“endangers judicial independence within the government system of checks and balances. Electing judges by majority vote in partisan ballots (i.e. by democracy) flies in the face of the judicial branch’s responsibilities to be independent of partisan influences and to check the power of the majority from trampling on the constitutional rights of the minority.”
Well!
Let’s leave aside the obvious point that judges chosen by a committee of lawyers are hardly “independent” of influences, partisan or otherwise. But the notion that judges selected by a privileged class, rather than ordinary voters, would be better able to maintain our system of checks and balances is something that would have shocked our nation’s Founders, who believed judges should be independent, but also accountable to the people. As James Madison - someone who knew a little about checks and balances - put it in Federalist 39:
“It is essential 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.”
The Journal informs us that “some of the state’s best minds” are gathering at a special conference and will be “evaluating the problem.” (For $150, you can even attend the event and watch the best minds at work). But isn’t the whole idea behind democracy that well all have a say in who rules us … even those of us who aren’t among the state’s “best minds?”
Democratic elections have their problems, and money is certainly an issue. But taking decisions about judicial selection away from “the great body of society” (i.e. the voters) and turning it over to a “favored class” (i.e. a “merit” board controlled by lawyers) would make judges even more insulated and even less accountable - which is the overriding reason why judicial elections have become so partisan in the first place.
Some Back and Forth On Democratic Judicial Elections
March 16, 2009
An article in this Sunday’s Telegraph Herald (Dubuque, IA) rehashes the typical arguments against democratic judicial elections (too expensive, too nasty, too political) but also the comments of University of Wisconsin-La Crosse Professor Joe Heim, who rightly says elections make judges more accountable.
A Quid Pro Quo For Demonizing The Wisconsin Business Community?
November 13, 2008
A special report by the Wisconsin Club for Growth has a couple fascinating items detailing some recent email exchanges between outgoing University of Wisconsin Chancellor John Wiley and defeated Supreme Court Justice Louis Butler.
Back in August, Chancellor Wiley authored a pernicious attack on the state’s business community, blaming Wisconsin employers for poisoning the political atmosphere in the state. Despite the embarrassing lack of any real facts or substantiating evidence, Mr. Wiley’s screed drew a hearty cheer from former Justice Butler, who praised him for “taking the time to speak out about the problems caused by the WMC [Wisconsin Manufacturers and Commerce], particularly as it concerned my Supreme Court race.”
Justice Butler, readers of American Courthouse will recall, was appointed to the high court in “open defiance” of the wishes of Wisconsin voters, who overwhelmingly rejected him by a 2:1 margin when he ran in 2000. After sidestepping voters and joining the bench, Justice Butler promptly shifted the court sharply to the left and began inventing wacky new theories that made Wisconsin businesses an easy target for predatory trial lawyers. Wisconsin voters dumped Justice Butler the minute they had the opportunity, ousting him in favor of the more moderate Michael Gableman.
But, the Wisconsin Club for Growth reports, the link between Chancellor Wiley and Justice Butler runs deeper than a mutual contempt for Wisconsin businesses and disdain for the wishes of Wisconsin voters. In an email, Mr. Wiley directs Kenneth Davis of the University of Wisconsin Law School to “reach out and try to work with him [Butler] to craft something mutually beneficial.” As the Wisconsin Club for Growth puts it:
… it’s no surprise that the UW would want a former Supreme Court justice on their staff – especially a liberal justice. But what you have here is two high-ranking officials essentially creating a position for Butler before any official duties exist. It’s a “let’s hire him, then figure out what he’s going to do” situation.
Incoming Chancellor Biddy Martin wisely warned Mr. Wiley that his article trashing Wisconsin businesses “would produce awkwardness for you, for me, and for the university …” – counsel he ignored. Perhaps Mr. Wiley might want to consider whether there are other factors contributing to the “toxic” political tone in Wisconsin – such as governors who appoint judges in open defiance of the people; Supreme Court justices who bring radical, personal agendas to the bench; and university chancellors who howl with rage against the taxpaying companies and voters who make his university possible in the first place.
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.
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.