July 14th, 2010
Our gavel grabbing friends over at the George Soros Center for an Undemocratic Judiciary – aka Justice at Stake – have a little item from the new president of the Nevada Bar expressing support for scrapping democratic judicial elections in favor of “merit” selection. Why? Because “retention elections would make judges much more accountable to voters” than contested elections.
Come again?
Of the 6,309 judges who ran in retention elections between 1964 and 2006, more than 99% were reelected, according to an article in Judicature by Professor Larry Aspin of Bradley University. Vanderbilt Law Profession Brian Fitzpatrick found that 145 out of 146 Tennessee judges were retained in a recent study he published on that state’s experiment with “merit” selection.
I’m willing to be disproven on this, but are Nevada judges who run in contested elections really returned to office more than 99% of the time, even taking into account the fact that many run unopposed?
In a Pittsburgh Post-Gazette op-ed, Professor John Kennedy of La Salle University invites us to “jump down the rabbit hole … and imagine a world where U.S. Supreme Court justices” are elected democratically. (Hat tip to JudgesOnMerit.) He then goes on to catalogue the alleged horrors of democracy – too much campaign cash, nasty TV ads, etc.
But here’s a more interesting mental exercise. Why don’t we “jump down the rabbit hole” and consider what would happen if U.S. Supreme Court justices were chosen by “merit” selection, as Professor Kennedy proposes. (more…)
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.
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 Texas Lawyer (subscription required) has a hand-wringer on the failure to replace democratic judicial elections with “merit” selection – where a tribunal controlled by legal elites meets in secret to decide who should sit on the bench. For 10 years, Senator/Attorney Robert Duncan – who has been designated a “Texas Super Lawyer” – has been pushing the “merit” selection rock up the hill without success. Why is Duncan so determined to abolish the constitutional right of Texans to choose their public servants on the bench? Because, in an election, a judge might actually lose his/her job! The horror! (more…)
Your son gets cut from a hockey travel team. Do you: A) Praise him because he tried his best? B) Assure him there are other teams? C) Sue the coach? If you’re the parents of two disappointed Toronto midget junior players, you dial up your lawyer and demand $25,000 in a desperate attempt to reverse the “irreparable psychological damage” done to your son.
As a hockey dad, I can tell you flat out, this is more about the irreparable psychological damage done to mom and dad. Players are disappointed, but they get over it. Here’s hoping that yahoo parent with a hockey puck for brains gets stuck with paying court costs and every other fee that’s possible with this nutty and unnecessary lawsuit.
Unfortunately, it looks like a lawsuit-happy culture is one of America’s leading exports to Canada.
In a recent address, Patrick Hanlon of the University of California-Berkley School of Law noted that “critical tort reform” has helped reduce frivolous litigation, but – perhaps unintentionally – pointed out the importance of getting the right judges on the bench.
According to Hanlon:
“ … plaintiffs and their lawyers are still able to pick the best forum for favorable judges and juries sympathetic to their cases and more inclined to side with them in their tort actions. ‘Surprisingly, overall, judges seem to have had a much greater impact than the juries have in creating anti-business litigation environments,’ he pointed out.”
Could there possibly be a better argument for why businesses and their advocates should fight schemes like “merit” selection, which typically give legal special interests such as trial lawyers enhanced power to decide who will control our courts?
Think tort reform is a “business” concern? Read this article which reports on the toll litigation costs take on school district budgets.
“The average New Jersey school district allocates approximately $26,000 each school year for litigation expense. in seven districts, this figure was higher than $500,000 for the 2009-2010 school year.”
In one district - School District of the Chathams - legal expenses are budgeted to be $1.26 million for 2010-2011. This is the kind of money that could be spent on “textbooks and teachers and field trips and fund things for kids,” says the district’s business administrator.
Instead, it will go to lawyers.
That sound of champagne corks popping that you’re hearing may be coming from the party over at the Pomerantz Haudek law firm. WSJ’s Law Blog reports that the firm has just reeled in a $56 million fee in a securities fraud class action suit.
While trial lawyer fees in the tens of millions are par for the course in our nation’s jackpot justice system, that’s a 25% cut of the $225 million settlement. Fees typically are around 15% in major awards. In signing off on the fee, NY Federal Court Judge Nicolas Garaufis wrote,
“While it may be that a lower percentage would also be sufficient, this court will not pretend that it has the expertise necessary to divine the ideal percentage.”
In other words, “How much? Beats me! Party on, dudes!”
Good article in Forbes reporting on a front group that a class action firm uses to wine and dine potential big clients - including public pension fund managers. (Hat tip: Walter Olson).
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