January 12th, 2012
Legal elites in Florida are up in arms! Governor Rick Scott is plotting “the biggest judicial power grab in Florida’s history”!
What exactly is Scott’s offense? Why, he’s threatening to “rejec[t] the time-honored and traditional input of the Florida Bar” when it comes to selecting members of the state’s Judicial Nominating Committee. The outrage!
Back in 1971, then-Governor Reubin Askew concocted a system that put legal elites in control of the judicial nominating process. Under his scheme, the governor chose three lawyers to sit on the nominating committee and the Florida Bar chose three members, with three non-lawyers added in for window dressing. The practical result, of course, was to raise the Bar to a position of privilege when it comes to picking judges.
Former Governor Jeb Bush weakened the power of legal special interests by claiming five appointments for himself, with the other four to come from a list submitted by the Bar. Now Scott wants the freedom to name all nine members, which would put the Bar where it belongs – on an equal footing with every other interest group in the state.
Can anyone imagine the Florida Chamber of Commerce claiming a “time-honored and traditional” privilege to dictate the direction of the courts by choosing who will sit on the bench? Or the Florida Medical Association? Or the Florida State Music Teachers Association for that matter. The Bar may be blind to its own arrogance – but Florida’s elected officials are not and they are waging a much-needed battle to reduce the power of unelected, unaccountable lawyers and restore it to representatives of the people.
The Knoxville News Sentinel has named “merit” selection critic Sen. Mike Bell one of its “five legislators to watch in 2012.” As the Chairman of the Senate Government Operations Committee, Sen. Bell “is in a new position this year to put more power behind his voice.” The committee has the “first shot at deciding whether various state boards and commissions will die or be given new life.” The state’s “merit” selection board – which is controlled by legal special interest groups – is due to sunset this year without favorable action by Sen. Bell’s committee.
Last week, Shira Goodman over at Pennsylvanians for Modern Courts – a charter member of the $45 million+ George Soros campaign to end democratic selection of judges – suggested that the ethical transgression of one Philadelphia Traffic Court judge represented an indictment of judicial elections. This has become a favorite meme of the “merit” selection crowd – but as recent judicial scandals in New Mexico and Missouri demonstrate, judges chosen under secret selection hardly have a monopoly on virtue.
To satisfy myself that I wasn’t being too hasty, I spent about 30 seconds on a Google search this weekend and came up with a few more examples of “merit” selection judges behaving badly. In Maryland, the award goes to Judge Richard Palumbo, who dismissed a protective order against a man who later doused his wife with gasoline and set her on fire. A few months earlier, when the wife appeared before Judge Palumbo and said she wanted an immediate divorce, Palumbo shot back, “I’d like to be 6-foot-5.” A state Senator later accused Judge Palumbo of having an “anti-victim, anti-woman attitude.” Obviously a judge chosen strictly by “merit.”
In Florida, Judge Paul Hawkes resigned last November over charges related to his role in constructing a new $50 million courthouse locals refer to as the “Taj Mahal.” According to news reports, Judge Hawkes “pushed for mahogany walls, granite countertops, and 60-inch television screens in every office.” Hawkes was accused of “destroying public records pertaining to the court’s budget” and browbeating a “furniture vendor” into “underwrit[ing] a trip for Hawkes and two relatives.” Since the Florida judicial nominating commission meets in secret, I guess we’ll never know what “merit” commissioners saw in Judge Hawkes.
I’m not claiming that all judges chosen under “merit” selection are ethically challenged. That would be Shira Goodman-style demagoguery. Instead, I think there are two conclusions any fair-minded observer could draw:
1) Judges are human and prone to the same temptations to abuse power faced by every public servant;
2) We need strong mechanisms to keep judges accountable.
The primary objective of democratic judicial elections is to provide that accountability; the primary objective of “merit” selection is to destroy it.
As I mentioned yesterday, New Mexico’s problems with cocaine-possessing, prostitute-cavorting, drunk driving judges would seem to suggest that judges chosen by “merit” selection do not have a monopoly on public virtue. A recent scandal in Missouri – the birthplace of “merit” selection – offers evidence that judges chosen under this system have not cornered the market on professional ethics either.
While vacationing in China last October, it seems Associate Court Judge Barbara T. Peebles delegated her judicial responsibility to courtroom clerks, who handled “at least 350 cases” and even issued “as many as 18 arrest warrants” under her forged signature. One clerk-gone-wild dismissed “five cases, involving kidnapping, unlawful use of a weapon, property damage, domestic violence and theft.” When not playing judge, these non-lawyer clerks are primarily responsible for “keep[ing] track of paperwork.”
St. Louis Circuit Court Presiding Judge Steven Ohmer blasted Judge Peebles for “an overall lack of management and supervision” and said he was “still shocked” at the quantity of cases dispensed by clerks. A local defense lawyer was less diplomatic: “I think it’s as illegal as hell.”
When confronted about these actions after returning from China, Judge Peebles “denied that her clerks had acted improperly.” Judge Ohmer decided against removing Judge Peebles from office. As the watchdog group Better Courts for Missouri put it, “essentially, the court is letting Peebles go without any punishment because her actions were so outrageous that they would require a punishment that hasn’t been used in three decades, and they hope that switching her to a new division will alleviate the problem.”
The important point here is that judges are only human, regardless of whether they were chosen through democratic elections or by secret committee under “merit” selection. Judges can be unprofessional, unethical and even corrupt, just like any other public servant. That’s why judicial independence needs to be balanced with strong accountability. Democratic elections provide that accountability; “merit” selection doesn’t.
According to a recent Philadelphia Inquirer editorial, a Philadelphia Traffic Court judge is alleged to have promised to dismiss traffic tickets in exchange for campaign cash. If that weren’t enough, he also passed around naked pictures of himself to female city employees. What do you think? Is this an example of a sleazeball who, if the charges are true, can easily be permanently removed from office by the Court of Judicial Discipline? Not according to the “merit” selection crowd. No! It’s an indictment of democracy itself! It’s Exhibit A in why the people cannot be trusted to choose their public servants! Or, as Shira Goodman of the George Soros-financed Pennsylvanians for Modern Courts solemnly puts it, “judicial elections are not the way” to pick judges.
But wait a minute. Didn’t New Mexico Representative Dennis Kintigh just write an oped detailing a long catalogue of ethical abuses that “have diminished and tarnished the reputation and standing” of the judiciary in that state? Allegations involving judges chosen under “merit” selection? Incidents including gross violations of individual rights, drunk driving charges, possession of cocaine and “cavorting with a prostitute”?
As I wrote at the time, the “merit” selection crowd likes to claim that judges chosen under their system have a monopoly on virtue. But the examples from Pennsylvania and New Mexico show that judges are human – just like any other public servant.
Shira Goodman’s hopes notwithstanding, judges do not become angels simply because they are chosen in secret by a small committee dominated by legal special interest groups. Her attempt to blame one judge’s ethical transgressions on the people who voted him into office demonstrates both the contempt the “merit” selection crowd has for ordinary citizens and the reason why “merit” selection has never caught on in Pennsylvania.
Newt Gingrich’s campaign critique of the judiciary has elicited much rending of garments among the liberal elite – but also a surprisingly insightful editorial from the Boston Globe that serves as a good starting point for understanding the proper role of the judiciary in American democracy and the frustration many of us feel about courts that have become too isolated, insulated and arrogant. Like Gingrich, the Globe takes on the “now entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment – or a later reversal by the court itself – can alter that decision.”
“But judges are not divine and their opinions are not holy writ. The judiciary intended to be a co-equal branch of government, not a paramount one. If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president – or the states or the people, for that matter – to simply bow and accept it.”
Judges, the Globe rightly points out, “are no more immune to the lure of power than anybody else, and their assertion of judicial supremacy … has won them an extraordinary degree of clout and authority.” The elected branches of government “have an obligation to check and balance the judiciary” because:
“… the heart and soul of American democracy is that power derives from the consent of the governed, and that no branch of government – executive, legislative, or judicial – rules by unchallenged fiat.”
The Globe’s level-headed, constitutionally-grounded analysis applies to both federal judges and state judges. It’s also why “merit” selection – which produces judges who are unaccountable and rule by “unchallenged fiat” – is under fire in so many states. If Newt Gingrich’s critique of the judiciary prompts more Americans to stop viewing judges as God-like Olympians in robes and more like public servants in need of strong oversight, he will have made a healthy contribution to the public discourse that will far outlive this presidential cycle.
The New Jersey Lawsuit Reform Alliance is holding its annual contest to identify the craziest lawsuit of 2011. My personal favorite: the 19- and 21-year-old siblings who sued their mother because of the emotional distress they suffered from the corny birthday cards she gave them. Life can sure be tough.
In a stinging oped, New Mexico legislator Dennis Kintigh calls for a “serious review of how the judiciary and legal profession as a whole is held accountable” under the state’s “merit” selection system. Kintigh cites several recent incidents that “have diminished and tarnished the reputation and standing” of the state judiciary. One judge was removed after “mishandling a courtroom disruption and grossly violating the rights of scores of people;” another “resigned after an egregious drunk driving incident;” and yet another “was found to be cavorting with a prostitute;” and a few years back, “the chief judge in the largest judicial district was caught possessing cocaine.”
The “merit” selection campaign likes to pretend that judges chosen under their preferred system have a monopoly on virtue. The long catalogue of ethical abuses cited by Kintigh suggests that judges – whether chosen under “merit” selection or democratic elections – are simply human, like all other public servants. While judges chosen democratically through elections are readily accountable to the people, judges chosen by “merit” commissions are accountable to no one. And, as Kintigh observes, “history has demonstrated over and over again that power and accountability exclusively held by a small group [like a “merit” selection commission] leads to catastrophe.”
Kintigh recalls the wisdom of James Madison, as I have often done myself, who wrote that “if angels were to govern men, neither external nor internal controls on government would be necessary.” Open, democratic judicial elections provide that “external control” Madison believed was so necessary – “merit” selection leaves us only to hope that all judges will be angels.
Justice at Stake’s Bert Brandenburg takes GOP presidential candidate Newt Gingrich to task for his attack on federal courts, including a threat to arrest judges in order to compel them to justify controversial rulings. Bombastic? Surely. Over the top? Absolutely – and I have no interest in defending Gingrich’s proposed “solution” to the problem.
But Brandenburg’s main complaint against Gingrich – “Americans want courts that can uphold their rights and not be accountable to politicians” – misses the point. The real problem with activist judges today – and the reason Gingrich’s attack is winning applause among the conservative rank and file – is not that judges aren’t accountable to politicians, but that they increasingly believe they are not accountable whatsoever to the people they serve.
There are ample cases in our history to show that activist judges who consistently trample on the prevailing values of the people often elicit a political reaction by whatever means are available to restore the proper balance between the three branches. Witness the decision by Iowa voters last November to dump three Supreme Court justices for overturning the state’s defense of marriage bill – legislation that was overwhelmingly endorsed by the people and adopted by the democratically-elected legislature. Or the fact that a federal court ruling to ban the words “prayer,” “amen,” “invocation,” or “benediction” from high school graduations has become a hot campaign issue.
The obvious response is that judges must remain independent, without concern about making unpopular decisions. This is true as far as it goes. But independence is not the only virtue our Founders sought for the judiciary – they also believed that judges must be accountable. This is why the lifetime tenure provided to federal judges is balanced by judicial nominations that originate from an elected president and require confirmation by elected Senators. It’s why many states continue to select judges through democratic judicial elections. And it’s why Brandenburg’s efforts to promote “merit” selection – where judges are chosen by an unelected, unaccountable commission that is dominated by special interest groups and meets in secret – can never win much popular support.
The reverberations from the decision by Iowa voters to dump three Supreme Court Justices last November continue to shake the “merit” selection movement. The Iowa City Press-Citizen is out with an editorial endorsing the idea that judges should “set aside their historic reluctance to engage citizens in civil discourse about controversial rulings …” The gavel grabbers over at Justice at Stake don’t seem to object. In other words, the High Priests of the “merit” selection campaign now think it’s just fine for judges to campaign! For re-election! Like ordinary politicians!
The Press-Citizen contends that the “only real problem” with “merit” selection in Iowa “is that it all but ties the hands of judges from defending themselves against any organized efforts to unseat them.” So apparently it’s OK to introduce politics into the judicial system – as long as it means protecting judges chosen in secret by a tribunal of legal special interest groups. University of Iowa Law School Professor Todd Pettys goes even further, suggesting the retention elections be abandoned and that judges only serve a single term. Under this scheme, judges would have no accountability to the people they serve whatsoever.
Think for a minute about the theory of judicial selection “merit” selection system now represents. Judges should be chosen by a small committee dominated by legal special interest groups. These committees must meet in secret, with no public record of their proceedings. Citizens must never vote against judges running for retention – even if those judges flagrantly overstep their authority by enacting social policy that is the proper domain of elected legislatures. And if citizens do vote against judges, “merit” selection proponents will ban retention elections, giving us an Imperial Judiciary, or encourage judges to campaign like politicians, undermining the central promise of the entire “merit” selection movement, which is that it eliminates politics from judicial selection. And they wonder why state after state is pushing back against this incredibly undemocratic system for choosing public servants.
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