Trust the People Not the “Experts”
July 9, 2010
In a blistering editorial, the Madison, Wisconsin Capital Times’ editor emeritus Dave Zweifel takes aim at those who “repeatedly pontificate that ‘merit’ selection of Wisconsin judges will somehow magically protect the integrity of our judiciary.” The highlights:
“While it’s undeniably true that in recent highly charged judicial elections the stench of money has served to taint the candidates, at least there was an opportunity to question and examine them at forums and debates and other campaign stops throughout the state.”
“It’s far better that those who aspire to become Wisconsin Supreme Court justices are subjected to the scrutiny of an election campaign, where the people themselves can judges the candidates’ characters. In American democracy, it’s always better to trust the people’s judgment than to turn the decision over to a group of elite ‘experts’ who will only have plenty of conflicts of their own.”
Zweifel surrounds these gems with a lot of hand wringing about his desire for public financing of judicial campaigns and the need for radical new recusal standards – two proposals which, in my view, are designed to shape the judiciary to the liking of legal elites by removing conservative judges from the bench. Nevertheless, it’s refreshing to see someone from the left who puts his faith in the people rather than legal elites.
Fighting to Overturn the Will of Wisconsin Voters
July 6, 2010
It’s been more than two years since Wisconsin voters ousted incumbent Supreme Court Justice Louis Butler in favor of Michael Gabelman, but judicial activists in Wisconsin refuse to give up the ghost. According to the Milwaukee Journal Sentinel, the Court is currently deadlocked 3-3 over allegations that Gabelman “lied” in a campaign ad that highlighted Butler’s liberal record. A three-judge Judicial Conduct Panel, along with three of Gableman’s colleagues on the Supreme Court, believes the charge should be dismissed. But what happens next is anyone’s guess.
Butler, AmericanCourthouse readers will remember, was appointed to the court in “open defiance” of the wishes of Wisconsin voters, who had already rejected him once by an overwhelming 2:1 margin. Following his appointment, Butler shifted the court sharply to the left, eviscerating Wisconsin’s medical liability reforms and inventing crackpot new theories to open Wisconsin employers to more abusive litigation.
The “merit” selection crowd is already using this ongoing dispute to gin up support for its goal of abolishing democratic judicial elections in Wisconsin.
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
Non-Scandal in Wisconsin
May 3, 2010
An ultra liberal special interest group in Wisconsin last week launched an ugly attack on Republican Wisconsin Attorney General JB Van Hollen – and in its attack, the group also smeared the American Justice Partnership, an organization which I run. (The following item is cross-posted to our AJP website).
The group is called “One Wisconsin Now” and it accuses Wisconsin AG Van Hollen’s office of a “gross abuse of power” and putting “politics above the law.” Very serious charges. So, exactly what offense did Van Hollen’s office commit? Basically being against President Obama’s government take-over of the health care system and seeking information about joining other AGs in a Constitutional challenge to this monstrosity.
(One Wisconsin Now also tries to drag down the American Justice Partnership for contributing to the Republican State Leadership Committee (RSLC) – a group dedicated to electing conservative, rule-of-law AGs such as JB Van Hollen.)
If all that sounds like a big nothing-burger to you, you’re not alone. The most interesting thing here is not the non-scandal, but the extent to which a tangled web of special interest groups is spending millions of dollars to try to turn policy disagreements into criminal acts – or at least create an appearance of impropriety that can be used in the next campaign. Read more
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.