June 16, 2011

By Dan Pero

While Sandra Day O’Connor’s “merit” selection powwow at Wayne State University earlier this week was heavily stacked with anti-election activists, former Michigan Chief Justice Clifford Taylor managed to crash the party, delivering a thoughtful, measured speech that ruthlessly demolished the arguments behind “merit selection.”  It’s important reading for supporters of democracy in judicial selection, and I’ll try to get a link to the full speech, but here are some highlights:

  • All Judicial Selection Methods are Political:  “Any state appellate court judicial selection method – gubernatorial appointment with or without legislative confirmation, partisan or non-partisan election or the currently hyped and cleverly named, merit selection – can and does create the potential for the selectee to feel, or be perceived to feel, beholden to the selector.”
  • Today’s Judges Are Just Impartial Arbiters of the Law:  “In the last 40 years or so state appellate judges increasingly have made policy, not just by modifying the common law as they traditionally have, but also by, for the first time, deciding disputed moral values questions such as same sex marriage and precluding, on little more basis than they think they are wrong-headed, certain economic regulations such as tort reform, product liability reform and medical malpractice reforms of various sorts.”
  • “Merit” Selection Isn’t About Merit:  “Merit selection advocates claim that it will get politics out and focus only on the applicant’s credentials….The problem however is that looking at these things alone won’t get you anywhere because almost invariably all the applicants will have good credentials … even if diligent efforts are made to use just these merit templates, it quickly becomes clear that it is reckless to say that because one applicant, many years ago, had a 3.5 GPA and another a 3.6 GPA in different law schools or that, later in life, one was a Boy Scout leader and the other a Food Bank volunteer one is “merit qualified” and the other isn’t.
  • “Merit” Commissions Inevitably Focus on Politics/Ideology:  “In practice what is to be expected is that the merit selection panel, having found no actionable differences in credentials, will be focused on where the applicant is on controversial questions like tort reform, medical malpractice liability reform, sexual liberty issues, religious expression in the public square, pornography, and that perennial favorite that has dominated judicial selection matters across the country since 1973, abortion, as well as many other similarly edgy traditionally political issues that are increasingly coming before our courts.”
  • The Evidence is Clear:  “… when we look at how merit selection has worked in Missouri and Tennessee it is hard to deny that they have been doing politics not merit. [Vanderbilt Law] Professor [Brian] Fitzpatrick found that judges picked by the so-called non-partisan selection commissions overwhelmingly leaned Democrat. His findings, as summarized by the Wall Street Journal on April 18th, 2009, were that ‘Since 1995 in Tennessee, 67% of appellate nominees more often voted in Democratic primaries, compared to 33% who voted more often in Republican primaries. As to Missouri, “of the roughly half of the appellate nominees who made campaign contributions some 88% donated to Democrats while only 12% went to Republicans.’ And if this data isn’t convincing that the Missouri picks were really based on politics and not merit, then how can you explain the fact that three recent Chief Justices had extremely political backgrounds. Ronnie White was a high profile legislator, Michael Wolff was a former Chief Counsel to a Governor as was Edward Robinson. These don’t sound like platonic guardians of the law to me.”
  • Judicial Selection is Political Because There is a Divide over the Role of Judges:  “… what any evaluator of any selection system has to come to grips with, I believe, is the inescapable reality that there is a great divide in this country on how powerful judges should be in the making of public policy. This almost invariably will color any decision on the selection of judges including those made by merit selection committees….It is this split that explains the titanic battles of the last 25 years played out in the U.S. Senate over the confirmation of federal judges, and the fractious state supreme court justice campaigns of recent years across the nation. Clearly, these are not fights over credentials. They are fights over the direction of public policy and who will make it….To claim to somehow convert this fundamental split over the proper judicial role in a representative democracy into a polite, almost scientific, inquiry as to whether the candidate got an A or B in Contracts or volunteered enough at the United Way is an undertaking both foolish and hopeless.”
  • “Merit” Selection Advocates Want to Push Courts in Their Ideological Direction:  “I believe the sophisticated folks who argue for merit selection really know that merit is just an attractive ruse and what is really going on is merit selection gives them the best chance to get judges on the bench who share their political and policy views.”
  • Elections are Open, Transparent:  “… as there will be this kind of politics involved in the selection decision, however made, the only question is do we want it to occur openly and robustly in the public square with all the people deciding which candidate has merit, broadly defined to include these essentially political matters, or behind closed doors with clearly bogus proclamations that the ‘merit process is just looking for the best person using impartial measures.’”
  • Election are a Safeguard Against Imperial Courts:  “Public elections, allowing all voters to decide who should be the state’s appellate judges, while not flawless, are, I believe, the best of the alternatives. Voters can decide if the candidates are too close to their backers and who has merit. Whatever else may be said in evaluating these systems, the final measure should be that elections have the virtue, to a greater degree than any other system, and surely more than merit selection does, of allowing the people to rise up and change their courts if they wish to. Such power for our citizens is entirely consistent with this nation’s approach to governance and should not be abandoned precipitously for an alternative system that casually deals them out.”
  • “Merit” Selection is Under Fire:  “There are serious efforts to abolish the merit selection systems in Missouri, Kansas, Tennessee, Florida and Oklahoma and in Iowa to a lesser extent. In Arizona, the legislature just put a ballot measure on the 2012 ballot that will reduce the bar’s influence. Moreover, last year in Nevada, with Justice O’Connor’s active involvement to assist in its passage, Question 1, to replace the state’s elections system with merit selection, was overwhelmingly defeated.”

Carrie Severino over at Bench Memos does an excellent job summing up and critiquing O’Connor’s remarks here.