An Inadvertent (and Inconvenient) Truth About “Merit” Selection
September 9, 2011
The Wisconsin State Journal ran an editorial yesterday that suggests the physical altercation between Supreme Court Justices David Prosser and Ann Walsh Bradley can be traced to Wisconsin’s “ugly judicial elections” which “create hard feelings and suspicion both on and off the court.” “Merit” selection, the editorial implies, would lessen these hard, suspicious feelings between Justices and presumably lower the risk of violent altercations in judicial chambers.
It’s tempting to dismiss all this as mere pabulum – just another “merit” selection proponent grasping at any excuse to shill for a losing idea. But perhaps the State Journal has inadvertently revealed an important (maybe even inconvenient) truth about “merit” selection. The Prosser-Bradley bout occurred during a heated discussion about the Supreme Court’s forthcoming 4-3 ruling that upheld Governor Scott Walker’s union reform plan. The battle over this plan was so bitter and divisive it led to massive protests at the capitol and the extraordinary sight of Democratic legislators fleeing the state to block the measure’s passage.
The only possible way “merit” selection could have averted a similar division on the Supreme Court would be if this system produced an ideologically consistent set of justices. And given the fact that trial lawyers and other special interest groups routinely control “merit” selection panels, it doesn’t take much imagination to deduce the ideological slant of justices chosen under this system. Here we get to the nub of the matter: The State Journal and other “merit” selection lobbyists know full well that their preferred method for picking judges would shift the court sharply to the left – a shift that likely would have led to the overturning of Governor Walker’s union reforms. The only “civility” on the Court they seek is one where all justices march in lock-step to advance the ideological agenda they favor.
Anger Management at Wisconsin Supreme Court
September 7, 2011
Wisconsin Supreme Court Justices Ann Walsh Bradley and David Prosser have been cleared of all charges by a special investigator called in to unravel the she said/he said “chokegate” incident back in June. Now it’s time for the healing to begin.
Wisconsin Chief Justice Shirley Abrahamson wants to retain “an expert in small group dynamics” to teach each Justice how to “work in a more constructive manner.” If that doesn’t work, each Justice would undergo “professional training in conflict resolution.” After going through anger management, “the Justices could issue a joint statement pledging to work together in a collegial atmosphere.”
If all else fails, Abrahamson has threatened to force recalcitrant Justices to sit inside the classroom during recess. (OK, that was my idea.)
Fortunately, these Kumbaya moments will be achieved “at no expense to the taxpayers.”
P.S. Read Jim Stingl’s brilliant riff on “chokegate” here.
Wisconsin & Recusal: If First You Don’t Succeed…Try Plan B
August 19, 2011
Having failed in their efforts to keep conservative jurist David Prosser from serving another term on the Wisconsin Supreme Court, the “merit” selection crew is turning to Plan B: get him kicked off important cases.
Following a flurry of communiqués this week from the “merit” machine – led by Gavel Grab and seconded by JudgesOnMerit – the Milwaukee Journal Sentinel took its cue and weighed in with an editorial yesterday that argues Justice Prosser should recuse himself from a major First Amendment case due to be heard early next month.
At issue is the fact that during his election recount, Justice Prosser hired the law firm of one of the attorneys involved in the Supreme Court case. Of course, Prosser was forced to hire a legal team only because his opponent demanded the recount – at significant expense to Wisconsin taxpayers – despite the fact that Prosser had clearly won a close election.
While these recusal arguments are cloaked in the guise of fairness and accountability, it’s all a sham. Making high-minded demands that conservative jurists should be disqualified from critical cases is a tactic taken straight out of the “merit” selection advocacy playbook:
- The first step is to try to keep conservative judges off the courts – but Wisconsin voters chose to keep Prosser on the bench.
- If voters don’t cooperate, time for the next step: keep ordinary voters out of the process of judicial selection altogether and hand these decisions over to “merit” boards stacked with legal elites. George Soros-backed Justice at Stake and others have been pushing this rock up the hill in Wisconsin for years now – to no avail.
- Not to worry –if any of these steps fail or if any conservative judge happens to slip by, gag that judge with phony recusal demands.
- Every step along the way the goal is the same: impose the Left’s agenda on unwilling voters.
While they tut-tut and harrumph, muttering “fairness!” “accountability!” – don’t believe the hype. The “merit” crowd’s aim is as obvious as it is simple: tip the balance of the court in their favor. By booting Prosser off this case, the conservative majority would be wiped out and revert to 3-3.
As I’ve argued for some time now, recusal standards have become a back door way for liberals to marginalize conservative judges in important cases and shape the court to their own ideological ends.
The recusal issue for state supreme courts has become a new battleground in recent years – particularly as legal special interests have failed to get their candidates on the bench. Bert Brandenberg, head of Justice at Stake, has made “merit” advocates’ ultimate goal crystal clear. He called recusal “a battle for the soul of the judiciary 20-30 years from now.”
Prosser has no plans to step down from this case. More power to him. If Prosser does not act impartially and transparently, Wisconsin’s voters can get rid of him in the next election. But ignoring the voters’ will and forcing Prosser off the case does nothing to advance fair, accountable courts. It only serves to undermine democracy.
Getting the Facts Straight about “Merit” Selection in Wisconsin
August 3, 2011
The Wisconsin State Journal recently posted a little Q&A in an attempt to persuade voters to hand over their constitutional right to select judges to a gang of unelected, unaccountable elites. It’s going to be an uphill slog. Even a slanted, biased poll released by the Soros Center for an Unaccountable Judiciary (aka Justice at Stake) found that Wisconsinites oppose “merit” selection by a staggering 59 percent to 23 percent. But just for fun, let’s examine some of the “answers” that are supposed to sway ordinary citizens.
First, the State Journal argues that judges should not be chosen democratically because, while “we elect lawmakers and governors to represent us and fight for our causes” judges “are not supposed to represent constituencies or advocate on issues.” It’s tempting to dismiss this dribble as the flimsiest strawman. Read more
Shock Justice At Stake Poll!! Wisconsinites Hate “Merit” Selection
July 27, 2011
Justice at Stake is peddling the results of a new poll it financed that it claims demonstrates a “plunge” in public approval for Wisconsin’s Supreme Court. Of course, the mainstream media dutifully reported the story exactly as it was spoon-fed to them by Justice at Stake.
Wisconsinites were asked whether they approved or disapproved of the job the state Supreme Court is doing. Given the recent turmoil in the state – a tough Supreme Court campaign, a controversial 4-3 ruling upholding Governor Walker’s union reforms and “he said/she said” reports of physical altercations between justices – it’s something of a surprise that the poll results show an approve/disapprove spread of a measly 6 percentage points (33 percent approve/39 percent disapprove). That’s tighter than the 9-point differential in President Obama’s job approval rating in today’s Rasmussen survey. In other words, Wisconsin’s Supremes are making out better than the president!
What’s even more surprising is that “merit” selection continues to bomb among Wisconsin voters despite the alleged crisis of confidence in the state’s judiciary. Although Justice at Stake tried to bury the fact in its press release, a stunning 59 percent of voters oppose “merit” selection, compared to a paltry 23 percent that support it. What’s absolutely stunning – stunning! – is that this result came after a series of the most slanted, biased, prejudicial questions that all but put a gun to the respondents’ heads to try to persuade them to support “merit” selection.
- In Q8, poll takers are told Wisconsin Supreme Court races have become “some of the nastiest in the country, full of misleading ads and accusations of race baiting” that “compromis[e] the fairness and impartiality of Wisconsin’s courts.”
- In Q9, they hear that the Supreme Court is “dysfunctional” and that one justice called another a “profane word” and “threatened to destroy her.”
- In Q10, they learn that one justice “physically assaulted” – an incident “under investigation by law enforcement.”
- Even after hearing all THAT, in Q12, Wisconsin voters STILL reject “merit” selection by more than 2.5:1.
I can just see the pollsters struggling to explain the results to a furious Bert Brandenburg and the rest of the JAS crowd … “Uhhhh … ahhhh … we’re really sorry, Mr. Brandenburg. We rigged the poll as best we could, but ordinary people just seem to hate ‘merit’ selection.”
More Nonsense about “Merit” Selection in Wisconsin
July 19, 2011
During the recent battle over union reform in Wisconsin, tens of thousands of protesters and counter-protesters descended on the state capitol. Every Democratic Senator fled the state in an attempt to paralyze the legislature and prevent a vote on the bill. Teachers walked off the job, abandoning their students. Governor Scott Walker received death threats. And dozens of recalls were launched against legislators from both parties by angry citizens and union groups. Into this maelstrom stepped the Wisconsin Supreme Court, which upheld the union reform bill on a 4-3 vote.
Neutral observers might expect a close vote on such a controversial measure. But Rebecca Love Kourlis sees the decision as proof that “dissension on the court” has “reached a boiling point.” It’s all because of Wisconsin’s “current method of choosing judges,” she writes in the Milwaukee Journal-Sentinel; specifically, because Wisconsin allows citizens to select their judges in open, democratic elections.
A former justice on the Colorado Supreme Court and current executive director of the Institute for the Advancement of the American Legal System (who could be against that?!), Ms. Kourlis would rather judges be chosen based on their “qualifications and experience” – instead of the whims of the voters. Under “merit” selection, “a judicial selection commission would screen and interview applicants for appellate court vacancies, and recommend the best-qualified candidates to the governor.”
Like other “merit” selection proponents, Ms. Kourlis claims her plan keeps “politics” out of the judicial selection process. Of course, she never mentions the uproar over “merit” selection in states like Missouri, Tennessee and Florida, where arrogant, unelected, unaccountable commissions routinely try to force highly ideological candidates down the throats of the governor and the people. Or states like Nevada, where the people voted down a “merit” selection plan on the ballot last November, despite millions in spending by special interest groups and embarrassing robo-calls by former U.S. Supreme Court Justice Sandra Day O’Connor.
Come to think of it, Kourlis’ own Institute for the Advancement of the American Legal System joined in the electioneering in Nevada, albeit unsuccessfully, along with the rest of the $45 million “merit” selection machine. I guess for Kourlis and the rest of the “merit” selection gang, it’s OK to play politics … as long as you’re on the right side.
Kumbaya in Wisconsin?
July 14, 2011
The Northwestern newspaper in Oshkosh, WI wants Wisconsin’s seven Supreme Court Justices to “make a visible, earnest effort to repair some of the damage they have done to the [Court’s] reputation.” How?
“A good place to start would be a unanimous public apology from the seven jurists with a collective acknowledgement that their partisanship has transcended the inherent philosophical differences they bring to the bench.”
Here at American Courthouse, we’re all for civility in the courts and in judicial elections as well. And I suppose getting Wisconsin’s Supremes together for a round of Kumbaya is preferable to the “solution” typically bandied about by Wisconsin’s legal elites and their media supporters – namely ending citizen participation in judicial selection by letting a commission of lawyers pick judges instead of the people.
Yet Winnebago County district attorney Christian Gossett was closer to the truth when he was quoted in the same Northwestern editorial saying that “if the judiciary is viewed as a rough equivalent of the legislature, they risk undermining themselves.” And why are courts across the country viewed as rough equivalents of legislatures? Not because judges are elected or are too partisan, but because too often they take it upon themselves to act like legislators. If judges really want to stop “undermining themselves” they don’t need to apologize – they need to return to their proper role of interpreting the law, rather than making law.
The Blagojevich Plan for Wisconsin
July 5, 2011
A pair of Wisconsin state senators has introduced legislation that would allow a small committee controlled by legal elites and special interests to select judges in closed door meetings, rather than allow citizens to make the decision in open democratic elections. American Courthouse readers will instantly recognize this as “merit” selection – a name that reflects the conceit that ordinary voters are incapable of evaluating judicial candidates on the basis of merit. But Wisconsin Senate Majority Leader Scott Fitzgerald, who opposes the scheme, has coined a better expression for this system of picking judges: the Blagojevich Plan. As Fitzgerald put it:
“Isn’t this what Rod Blagojevich went to prison for? Playing kingmaker….Open and free elections are always the best option.”
Nice analogy! It neatly captures the rigged, insider’s game that “merit” selection has become. Even diehard proponents of “merit” selection like Adam Skaggs of the Brennan Center for Justice (recipient of over $2.2 million in Soros $$ over the past decade or so) recognize the weaknesses of this system. Admitting it’s no “silver bullet” and isn’t “immune” from politics, Skaggs says “merit” selection should be structured in such a way that the process isn’t dominated by any particular group. The problem is, special interest control is baked into the system and lawyers groups inevitably end up taking over the commissions.
The mantra that “merit” selection panels should not be controlled by lawyers has become a new talking point for charter members of the Soros campaign, like Skaggs and the Brennan Center. But, if Skaggs is actually sincere – if he really wants a cross section of society making important decisions like who serves us on the bench, why not give the job to the most representative group of all: Wisconsin’s more than 3.4 million registered voters?
Another Lame Excuse for “Merit” Selection
June 29, 2011
The Wisconsin State Journal is up in arms over an alleged altercation between state Supreme Court Justices Ann Walsh Bradley and David Prosser. Justice Bradley accuses Justice Prosser to putting “his hands around my neck in anger in a chokehold” while Justice Prosser accuses Justice Bradley of charging toward him. Lord knows how this he said/she said will sort itself out, but the Journal already has an explanation: It’s all because of democracy! – specifically democratic judicial elections!
The blowup allegedly occurred over a dispute between Bradley and Prosser over a 4-3 high court ruling affirming Governor Scott Walker’s controversial move to reform the public employee unions that are bankrupting the state. Such a disagreement would have never happened under “merit” selection, the Journal assures us. Why? Because “a citizen [correction: lawyer] panel that’s insulated from politics would carefully draft a list of experienced, independent and impartial judges …” – you know, the kind of judges who won’t physically attack each other.
Come to think of it, maybe abandoning democracy for “merit” selection isn’t such a bad idea after all. Why not have a panel of experts pick legislators as well? Maybe legislators picked by “merit” rather than by politics wouldn’t abandon their seats and flee the state for six weeks because they were about to lose a vote.
As former Michigan Chief Justice Clifford Taylor has pointed out, what’s really at stake here [not in the altercation, but in the 4-3 vote] is a deep, divisive dispute over the role judges are supposed to play in society. Some believe judges should only interpret the law, while others believe judges should apply their ideological preferences to secure outcome they deem “fair.” “Merit” selection promises to paper over this divide by rigging the system to select primarily liberal judges. But this is a debate that must ultimately decided by the people – and the best way to do so is through open, transparent, accountable elections.
Finally…Kloppenburg Concedes
May 31, 2011
In a press conference today in Madison, WI, JoAnne Kloppenburg conceded the state supreme court election to Justice David Prosser.
After losing by 7,316 Kloppenburg demanded a statewide recount, even though no prior recount in the state had changed the final outcome by more than 500 votes. Needless to say, Kloppenburg failed to change that history: the recount netted her just 310 additional votes.