Beware of Demands Limiting Judicial Elections

On February 22, 2011, in Post, by youngadmin

Now that the citizens of Michigan have elected a conservative majority on the Michigan Supreme Court, you can anticipate a broad range of direct attacks on that conservative majority as well as renewed calls to limit the People’s right to elect their judges. The following piece explains why the elites want to eliminate judicial elections – here and elsewhere:

In July, 2010, the Lansing State Journal, joining others who view judicial elections with hostility, editorially suggested that we change the method of selecting Supreme Court Justices:

“If Michigan voters opt this fall to call the state’s first constitutional convention in nearly 50 years, a top task for delegates should be to junk the way the 1963 State Constitution selects Supreme Court justices.”

In so doing, the LSJ joined a long list of people and organization clamoring to change the way judges are selected in Michigan, including former Justice O’Connor and George Soros.

Why has judicial selection become a hot topic? The answer is based on the question of who gets to control (or should control) the judiciary – you, the People, or someone else.

In Michigan, since we became a State, the People have elected their judges.  Elites hate this because they frankly don’t believe the “public” can be trusted to make intelligent choices about who should sit on our benches.  (What else would you expect from elites?)  Frankly, if all judges believed as I do that a judge’s constitutional duty is simply to follow the law by interpreting the words in our constitution and our statutes according to their ordinary meaning, then there might be less rancor or concern about judicial selection processes.  But about 50 years ago, the American judiciary transformed itself into an oligarchy of philosopher kings bent on transforming our society according to its own social and moral preferences.  It is this change that has caused the problem.

When judges aspire to be social engineers rather than interpreters of the law, their social, political and moral beliefs really matter.  And it correspondingly matters much more who gets to put such persons on the bench.

At the federal level, judges are nominated by the President and given “lifetime appointments” with the “advice and consent” of the Senate.  We have observed the essential political nature of the federal judicial selection process in the vicious wrangling during the Senate confirmation process for Supreme Court nominees.  This is a very political process and properly so. The two political parties are fighting in the United States Senate over two competing visions of the judiciary: whether judges should be social engineers or follow the original constitution. This is the same question presented however judges are selected and it is a POLITCAL QUESTION of great importance to our constitutional Republic.

The LSJ conceded that the selection of judges is a political question no matter how it is accomplished:

“To be clear, there is no purely nonpartisan way to put people on the Supreme Court bench. An appointment process, after all, is controlled by a partisan governor and a partisan Senate.”

Interestingly, the LSJ offered no “solution” for what it believes is too political a process for selecting Justices in Michigan.  However, many calling for reform of this process, like Soros and O’Connor, are really supporting a lawyer dominated selection system they call “Merit Selection.”  In this system, a group dominated by lawyers (accountable to no one but themselves) selects the judicial candidates and usually offer up three that the Governor must choose among.  Former Missouri Governor Matt Blunt campaigned pledging to appoint conservative judges in his state. Once elected, he found out the hard way what happens in a “Merit Selection” system when lawyers get to make judicial picks:  He was stuck with all liberal choices.

As my colleague, former Michigan Supreme Court Chief Justice Clifford Taylor has pointed out, the idea that judicial selection can be reduced to some antiseptic examination of credentials – like who got an A+ in Contracts back in law school – is, to put it kindly, wishful, naïve and preposterous thinking.  In ALL systems of judicial selection, the values, ideological leanings and personal proclivities of SOMEONE dictate who which judges will be chosen.  With judicial elections, it’s the people; with gubernatorial appointments, it’s the elected governor who is accountable to the people; under “merit” selection, it’s the lawyers who sit on the nominating boards and are accountable to no one.

Debates about the antidemocratic nature of merit selection have erupted with the vengeance in places like Iowa where the voters last election removed three justices that voted to constitutionalize the right of same sex couples to marry.  That exercise of democracy has offended the elites who had selected those justices by “merit selection.”

Let’s be honest.  Political campaigns are messy.  But I think that it is important for those of us who wish to sit on your courts to explain to you what our judicial philosophies are: do we want to transform our society according to our own social, political and moral beliefs or are we Rule of Law judges who will follow the law?  We need to meet you and you need to meet us.  Having candidates meet the voters is one of the most therapeutic activities that can occur in a Republic.  In Michigan’s last election, voters resoundingly supported two Rule of Law justices and returned our Court to one committed to that judicial philosophy.  It was a brutal, ugly campaign but the People got to decide what kind of Supreme Court they wanted.  I predict that this change on our Court last election will encourage those who prefer the rival “empathy” judicial philosophy to ramp up their assault on judicial elections.

So beware of calls for reforming judicial selection processes in Michigan – especially in a process that no one knows how it will all turn out.  Make the so-called reformers tell you what they really want, but I suggest that you hang onto your right to vote for judges in Michigan.  There is no other check on those who have the power to transform your constitution and our society by personal whim.