The $45 Million (and Counting) Campaign to Abolish Judicial Elections and Reshape America's Courts
The $45 Million (and Counting) Campaign to Abolish Judicial Elections and Reshape America's Courts
“When historians take stock of our legalistic age” the American Bar Association Journal wrote in 2000, “they may find evidence that the greatest impact was made by a non-lawyer who happened to be a Hungarian-born immigrant.” That non-lawyer is George Soros, a hedge fund billionaire (ranked 15th on the 2009 Forbes 400 list with a net worth of $13 billion) who has used his immense wealth to create and finance a myriad of liberal-oriented organizations and foundations through his Open Society Institute.
Many Americans are familiar with Mr. Soros’ political activities through his support of left-leaning groups such as MoveOn.org and America Coming Together. While these activities have been widely chronicled in news outlets, including The New Yorker, Time, and NPR, little attention has been paid to Mr. Soros’ efforts to reshape America’s courts. As Investor’s Business Daily describes, “…Soros is no hands-off donor. According to the Open Society Institute’s website: ‘Despite the breadth of his endeavors, Soros is personally involved in planning and implementing the foundation network’s projects.’”
Mr. Soros’ ultimate impact on our judicial system “remains to be seen, and some reasonable minds question his efforts,” the ABA Journalarticle concedes. “But by sheer ambition and focus, he could bring more change to the justice system and the legal profession than anyone since a small group of founders crafted the Constitution.” Mr. Soros, we learn, is committed to “putting millions of dollars where his mouth is.” The author notes that “if his high-dollar effort to fix what he thinks is broken continues and is anywhere near as successful as it is ambitious, Soros may have more impact in those areas
Of course, we should take the ABA’s breathless elevation of Mr. Soros into the ranks of Madison and Hamilton with a grain of salt. After all, at the time of the article’s publication ( January 2000), Mr. Soros, through his Open Society Institute, had already given over $2.6 million to the American Bar Association.
The Soros/OSI largesse came with a political agenda. Of the initial $2.6 million investment, $807,000 was targeted for “protecting judicial independence,” of which $500,000 was earmarked to “increase public awareness of the need for impartial judges.” Between 2000 and 2008, financial records show the OSI contributed an additional $4.444 million to the ABA, with $1.985 million budgeted for the work of the Standing Committee on Judicial Independence.
Mr. Soros’ efforts to reshape America’s justice system to suit his personal ideological views do not stop with the American Bar Association.
An analysis of hundreds of documents and websites, foundation and nonprofit IRS Form 990s,10 reveals that OSI has funneled at least $45.4 million into a highly-coordinated campaign to reshape the judiciary and fundamentally change the way judges are chosen in many American states. This figure is almost surely a conservative estimate, for these same organizations have received an additional $52.5 million from OSI to finance a range of activities, some of which, such as “general support” contributions, may be supporting OSI’s judiciary campaign. As Investor’s Business Daily noted, “Soros’ ‘shaping public policies,’ as OSI calls it, is not illegal. But it is a problem for democracy because it drives issues with cash and then only lets the public know about it after it is old news. That means the public makes decisions about issues without understanding the special agendas of groups behind them. Without more transparency, it amounts to political manipulation.” [Emphasis added]
OSI has also earmarked tens of millions of dollars to promote softer sentencing guidelines, the legalization of drugs and other radical changes to the judicial system. This report will focus on one aspect of OSI’s activities: the campaign to alter the composition of our judiciary by ending citizen participation in judicial elections.
This campaign encompasses efforts to rewrite state constitutions, abolish judicial elections and impose a judicial selection system that takes power away from ordinary citizens and gives it to a handful of legal elites.12 No wonder the ABA Journal gushed that Mr. Soros could have the greatest impact on our legal system since the founding fathers. N
Approximately 95 percent of civil disputes in America wind up in state courts, giving the judges who hear these cases enormous power over our lives, property, and business affairs. The authors of our state constitutions recognized the need for a check on this power, which is why 39 states hold some form of judicial elections to determine who will sit on state benches. The goal was to balance the virtues of independence and accountability in the judiciary by requiring judges to assume office by the consent of the people.
Many people recall James Madison’s famous maxim from Federalist 51: “If men were angels, no government would be necessary.” Far fewer remember the sentence that followed: “If angels were to govern men, neither external nor internal controls on government would be necessary.” For more than a century, a strong majority of states, recognizing that judges are not angels, have utilized contested elections as the primary “external control” over a powerful state judiciary
By this means, if judges were inept or exceeded the judicial role by engaging in lawmaking (inserting themselves into social, economic and regulatory issues that are the domain of elected legislatures) they could be removed. When judges stray from following the strict rule of law, serving their own social or political visions instead, a dose of democracy through the judgment of the people is often the surest corrective.
Over the last few decades, judges who are willing, even anxious, to usurp legislative powers have resulted in a more intense spotlight on state judicial elections. As “judicial activists” began to substitute their decision making for that of elected legislators, citizens and organizations impacted by their rulings became more engaged in judicial races as a way to demand accountability. Where judges once often ran unopposed, today’s races can feature full-blown campaigns, complete with extensive fundraising and negative television advertising as with any other high-profile race for public office
Predictably, the rise of contested elections has not set well with everyone, particularly legal elites, who recoil from the inevitable coarseness of the campaign, and those individuals and groups who favor or benefit from an activist judiciary. Rather than trace this new unease with judges back to the source, these groups and individuals instead blame the “system.” Their solution: change how judges are selected so as to protect them from “political influences” or “special interests.” They advocate junking democratic elections and replacing them with a “merit selection” system where a small committee (not all citizens) picks the most “qualified” to sit on the bench.
All this would shock the founding generation who formed our nation and states on the notion that all power traces back to the people. The people control policymakers and officeholders, not vice versa. Imagine their dismay with “merit selection” supporters who want to turn this principle on its head by protecting the government (or at least our public servants on the bench) from the people. As one retired judge put it: “I do not mean to suggest that elected judges are necessarily unqualified or corrupt, but rather that merit selection is far superior to selection by election, since the voting public does not have the slightest idea which candidates are qualified or what are the qualifications for a good judge. As I have said previously, there is a suggestion that elections should be retained because they make judges accountable to the people, but there should be no such accountability.”
It is important to remember that calls to restrict or abolish judicial elections often come from those who are not at all unhappy with a muscular judiciary: leaders of state bar associations, retired or even sitting judges, prominent trial lawyers and other legal elites. In other words, the calls to restrict or abolish judicial elections come from the same people who would sit on “merit selection” boards and would hold the power to pick all judges once voters are pushed aside. A look behind this effort reveals not the organic, grassroots uprising against judicial elections advocates claim, but a highly-coordinated campaign fueled by millions of dollars from one of the most powerful special interest groups in the country.
The Open Society Institute finances judicial selection reform through its U.S. Justice Fund, particularly through its Judicial Independence Program. The OSI website casts this mission in grandiose terms:
“[T]he Judicial Independence Program promotes fair and impartial courts through increased public support for an independent judiciary and through reform of judicial selection. Eighty-seven percent of judges in the United States are elected, and in recent years big money and special interest political pressure have become a staple of judicial campaigns, raising questions about the integrity of U.S. courts. The program seeks to counter the influence of political and special interest groups that threaten both the integrity of the court system and the ability of judges to render fair and impartial decisions.”
The Judicial Independence Program led to the formation of Justice at Stake ( JAS). An umbrella organization to oversee the judicial reform campaign, JAS purports to be a “non-partisan, judicial watchdog group” out to restore judicial integrity by replacing elections with a “merit selection” system. JAS was created specifically to coordinate the work of the various organizations, many of which were already being funded under OSI’s “Judicial Independence” Program. The Open Society Institute’s website confirms that “The Justice at Stake Campaign ( JAS) is a broadbased national and grassroots campaign organization, created by OSI to work with various OSI grantees and various other organizations engaged in judicial independence work.”
The formal launch of the Justice at Stake Campaign took place on February 14, 2002. In the initial press release, JAS claimed “more than 30 judicial, legal, and citizen groups from across the country” were coming together for this effort and referenced several organizations with non-partisan-sounding names, including the American Bar Association, the Brennan Center for Justice at NYU School of Law, and the National Institute on Money in State Politics. The campaign’s launch was accompanied by public opinion survey results decrying the politicization of judicial races.
Despite the “independent, non-partisan” gloss, remarks by OSI leaders reveal the political purposes behind the formation of JAS. Excerpts from a June 2005 article by Gara LaMarche, then Vice President and Director of U.S. Programs for OSI, provide insight into the harshly partisan mindset that then pervaded OSI while the JAS campaign was underway.
“In the last few years, radical-right political leaders have moved from the fringe to essential control of much of the national and many state governments. They, the fundamentalist clerics and their followers who comprise the ‘base’ to which they feel most accountable, and the network of think-tanks and attack media which supports them, make clear their intent to roll back the Great Society and the cultural, social and political gains of the 1960’s. Now, with the Social Security fight and the battle over the courts, they are going after the New Deal.” “…It is not necessary to believe that the election of 2000, or even of 2004, was stolen (despite the persistence of rules and practices which disadvantage low-income and minority voters), in order to take the view that democracy itself has been tampered within order to consolidate power.”
“…Progressive institutions and alternative policies and messages need to be built and nurtured. That must and will be done, with our involvement.”
“… In many ways, the Open Society Institute and its grantees, and many of our donor colleagues, are dealing with the range of open society threats I discuss above. In some areas we need to step up our work; in others we need to find or help create new initiatives and institutions; in all we need to recognize the integrated nature of the threats and integrate our own responses accordingly.”
“…We need to protect the independence of the judiciary as urgently as ever. The key U.S. advocacy groups are in the vanguard of resistance, but at least at the federal level, the situation has become steadily worse. Preserving the filibuster as an option to block the worst judicial nominees is only a first step. We need a longer campaign to monitor judicial appointments, particularly with the balance of the Supreme Court at stake. Such a campaign must involve the civil liberties and pro-choice groups already in the foreground, and also build the broader civil-rights and environmental communities. It must include groups whose social and economic justice agenda is threatened by judges determined to reverse hard-won civil rights and the very underpinnings of social welfare and regulation in the public interest.”
A November 2002 speech by then JAS Executive Director Geri Palast stated that “two years ago, Justice at Stake’s partners came together to stand up for fair and impartial courts.” Financial records confirm that the OSI began spreading seed money well in advance of the formal launch of Justice at Stake. In 2000, for instance, OSI gave the Georgetown University Office of Sponsored Programs $550,000 to support a public education campaign in cooperation with Citizens for Independent Courts and other coalition organizations. (This was about the same time as the $500,000 contribution to the ABA to increase public awareness of the need for impartial judges.) A gift of $300,000 was given to Georgetown’s Office of Sponsored Programs for the same purpose in 2001, with an additional $200,000 later that year to “support the public education campaign.”
The first reference to JAS in the OSI IRS Form 990-PF occurs in 2001, when OSI gave $400,000 “to provide operating support to the Justice at Stake Campaign central office”21 within the Office of Sponsored Programs at Georgetown University. Another $280,000 was provided to finance “polling and focus group work in states identified by Justice at Stake.”22 Polling, as we will see, plays a major role in the campaign tactics employed by JAS.
to further its efforts to end judicial elections and replace them with “merit selection” systems, JAS deploys a full range of modern hardball campaign tactics. The campaign unfolds according to a well-developed playbook, with JAS as the quarterback (just as envisioned by OSI).
Define the problem.
Once a state is targeted, JAS typically finances a public opinion poll23 that purports to show that a majority of citizens in that state believe judicial decisions are influenced by campaign contributions. Since judicial candidates must often raise large amounts of money to get elected, JAS argues that elections and the fundraising required to conduct them creates this public perception of judicial favoritism, which undermines judicial integrity and independence.
Raise the issue’s profile.
JAS uses its poll findings to generate media coverage suggesting that judicial races have become too expensive and overly political.24 Judicial campaigns themselves become a “perception problem” among citizens, requiring a policy solution. It is ironic to hear majority opinion in a poll cited as an argument against majority rule in the selection of judges. Yet, many in the media fall for it, reporting the results as if JAS was a fair and impartial source.
Finance an artificial grassroots campaign.
Through contributions, JAS recruits state-based organizations and partners to join in the call to eliminate “politics” from the judicial selection process and end the “perception” of judicial favoritism. Oftentimes, local academic experts are enlisted, while JAS also works to expand the voices calling for reform to include well-meaning business groups, judges, minority organizations, nonprofit good government foundations and associations, and religious groups.
Establish the desired policy outcome.
JAS lobbyists push for legislation or a constitutional amendment to replace judicial elections with some variation of a “merit selection” system, often with retention elections that allow citizens only a “yes” or “no” vote on a judge after sitting a full term. Alternately, public financing of judicial elections may be proposed, but the end goal remains the same: reduce the power of the people in judicial elections by either replacing them or protecting appointed incumbents.
Demonize the opposition.
Any group, especially within the business community, that defends the democratic election of judges or opposes “merit selection” is instantly demonized as trying to “buy” seats on the state court. The idea is to intimidate opponents and marginalize them in the debate.
The staff at JAS is well suited to carry out the organization’s campaign strategy. The group’s leadership boasts significant experience working at the highest levels of partisan political campaigns.
The ongoing debate over judicial selection in Pennsylvania provides a vivid illustration of the JAS campaign playbook in action.
Define the problem.
In June, Pennsylvanians for Modern Courts (PMC), a group that has been partially bankrolled by OSI since 2001, released the results of a public opinion poll that it spins as “proof ” that voters in the state prefer “merit selection” over democratic elections.25 On hand were officials from JAS and the Committee for Economic Development, organizations that also derive substantial funds from OSI.
Not surprisingly, the fact that the poll showed 75 percent of Pennsylvanians believe “merit selection” will not remove politics from judicial selection and that nearly 70 percent believe “merit selection” gives “politicians and trial lawyers” the power to pick judges was never mentioned, nor were the poll’s findings that 79 percent of Pennsylvanians believe democratically elected judges are “qualified” and 73 percent describe them as “fair.”
Raise the issue’s profile.
As part of the spin campaign, PMC organized a press conference featuring political heavyweights, such as Governor Ed Rendell and former Governors Tom Ridge and Richard Thornburgh. Pennsylvania newspapers and editorial boards fell predictably into line, printing major stories about the poll’s release but nothing about the poll’s funding. PMC has also established a blog called JudgesOnMerit to continue the “merit selection” drum beat.
Finance an artificial grassroots campaign.
For nearly a decade, OSI has been financing an artificial grassroots campaign in Pennsylvania through PMC to “educate the public on the need to reform the state’s judicial selection system.” Since 2004, the grants have been specifically in support of “merit selection.”
Establish the desired policy outcome.
PMC and the “merit selection” crowd promoted legislation that would take the power of choosing judges away from Pennsylvania’s 8.7 million registered voters and hand it to a 14-member panel. The governor and legislators would pick a majority of eight panel members, most likely chosen from legal special interest groups, such as the trial lawyers association.
Demonize the opposition.
When Pennsylvania House Judiciary Chair Tom Caltagirone, a Democrat, blocked the “merit selection” bill, he was pilloried in the media. Rep. Caltagirone’s sin: “I would rather let the people decide.”26
Various aspects of the JAS campaign have also played out in Wisconsin, Minnesota, Nevada and other states “merit selection” supporters have targeted.
According to the JAS website, the organization receives funding from the Open Society Institute, the Joyce Foundation, the Carnegie Corporation, the Moriah Fund, and the Herb Block Foundation.27 However, the IRS records forthese organizations make it clear that the prime bankroller behind JAS has always been Mr. Soros’ Open Society Institute.
Between 2001 and 2008, the OSI contributed more than $5.5 million to JAS.28 By comparison, since joining the JAS team in 2003, the Carnegie Corporation and the Joyce Foundation have contributed just $750,000 and $970,000 respectively, while the Moriah Fund’s 990-PF’s show contributions totaling $80,000 through 2008. According to its website, the Hebert Block Foundation contributions total $20,000 and include one contribution made in 2009.29
Yet the reach of the OSI into the judicial arena runs far deeper than simply financing JAS. An examination of the published list of JAS “partners” and their funding sources exposes a complex web of like-minded groups all sharing a common financial benefactor: the Open Society Institute. OSI funds found their way, directly or indirectly, to over 80 percent of the JAS partners. Even more revealing is the political agenda that comes along with these gifts; in many instances, the “partner” organizations receive funding from OSI for the specific purpose of joining or assisting in the JAS campaign.
As campaigns are built around the theory that judges who accept contributions cannot be impartial. This viewpoint was summed up succinctly by one of “merit selection’s” staunchest supporters, former U.S. Supreme Court Justice Sandra Day O’Connor, who told a Michigan audience in early 2010: “In order for judges to dispense law without prejudice, they need to be certain they won’t suffer political retribution.”
This is an extraordinary statement. Arguing that judges in the 22 states that hold competitive judicial elections32 are incapable of “dispens[ing] law without prejudice” because they face possible “political retribution” every time they go before the voters is a very serious charge. But neither Justice O’Connor nor JAS present any evidence to support their theory.
However, in August 2007, three law professors from three prestigious law schools published a study33 through the University of Chicago Law School that specifically addressed the question of whether appointed judges are superior to elected judges. Stephen J. Choi (NYU Law School), G. Mitu Gulati (Duke Law School) and Eric A. Posner (University of Chicago Law School) examined three years of decisions by every high court judge in every state – a total of 408 judges and nearly 30,000 opinions. They evaluated judges based on three criteria: judicial effort, skill and independence. As they put it in their conclusion: “We began this project with the assumption that the data would demonstrate that appointed judges are better than elected judges. Our results persuade us that the story is more complicated. It may be that elected judges are, indeed, superior to appointed judges. At a minimum, the conventional wisdom needs to be reexamined.”
Professors Choi, Gulati and Posner began their study by reviewing the conventional wisdom within the legal community using Justice Sandra Day O’Connor’s concurring opinion in Republican Party of Minn. v. White as a point of departure:
“Justice [Sandra Day] O’Connor’s backhanded putdown of Minnesota’s elected judiciary (in Republican Party of Minn. v. White) reflects the conventional wisdom among lawyers and scholars that judges should be appointed by elected officials or independent commissions, and should not be elected themselves. The conventional wisdom reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office.” (p. 1, emphasis added)
The authors found no evidence in their review of 30,000 court opinions to support this conventional wisdom:
“Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view.” (Abstract)
Not only did the authors find that appointed judges are not inherently superior, they also concluded, based on the data, that elected judges have the highest independence.
“… the data does not support the received wisdom that appointed judges are more independent than electoral judges.” (p. 20) In fact: “Judges subject to partisan election have the highest independence.”
Finally, Professors Choi, Gulati and Posner noted potential shortcomings with appointed judges and concluded that voters can play a valuable role in the judicial selection process.
“In a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common.” (p. 1) “… when many people participate in a decision making process, aggregation of information occurs, which can produce more accurate results than when the decision is made by only one person.”
The fact that there is no scholarly evidence supporting the notion that appointed judges are superior to elected judges has done little to halt the push for replacing democratic election of judges with a “merit selection” system. JAS and its partners have successfully recruited academics, famous jurists, Republican lawmakers and even business interests to their cause. Editorials in major newspapers espouse their crusade. Legislation to impose “merit selection” has been introduced in multiple states.
There are several variations on the “merit selection” system, also known as the Missouri Plan, but all feature a commission that evaluates candidates and passes on an approved list to the governor, and all eliminate the right to vote for judges prior to their assuming office.
“Merit Selection” Puts Elites in Control
In theory, judicial “merit selection” commissions are supposed to be nonpartisan and independent. In practice, however, these commissions are typically controlled by legal elites (often trial lawyers) that have no accountability to the public whatsoever. Consider the following states:
Armed with millions of OSI dollars, JAS and OSI benefactors are pushing to overturn state constitutions across the nation and impose similar “merit selection” systems that give legal elites the upper hand in choosing who will hear their cases.
In Pennsylvania, for example, a group called Pennsylvanians for Modern Courts (an OSI grantee) is pushing a constitutional amendment that would end democratic elections for judges and put in place a 14-member Appellate Court Nominating Commission where at least seven members must be lawyers by law. 39 Even members of the legal establishment recognize the faults in this plan. As Professor Marina Angel of Temple University Law School recently put it:
“The proposal would take away our right to determine the merits of judicial candidates and give that right to the appointees of Harrisburg politicians and special interests. And that’s supposed to be non-political ‘merit selection’?”
“Merit Selection” Commissions Often Operate in Secret With No Public Accountability
Professor Angel also criticized the proposal because the commission will “operate in secrecy, not subject to Pennsylvania’s sunshine laws.” The issue here, Professor Angel wrote, is not “Republican vs. Democrats, educated vs. uneducated. It is one pitting those who believe in democracy vs. those who don’t. It’s the majority vs. the elitists.”
Officials in other states have also battled entrenched special interests in an attempt to make “merit selection” commissions more open and accountable. In Tennessee, Democrat Governor Phil Bredesen pushed for a reform to have the state’s 17-member commission come out from behind closed doors and meet in public. This modest proposal was killed by what the Knoxville News Sentinel called a “lawyer-dominated House subcommittee.”42 After his plan was scuttled, Governor Bredesen said he was “very, very disappointed” with the outcome:
“I can’t imagine why they think a process as important as selecting judges…public officials with enormous power…ought to be conducted in secret.”
In Missouri, legislators introduced a bill that, along with other reforms to make the system more transparent, would have applied Missouri’s Sunshine Law to the state’s “merit selection” commission
Even die-hard “merit selection” supporter former U.S. Supreme Court Justice Sandra Day O’Connor agreed that the commissions should no longer be allowed to meet behind closed doors, telling a group of law students, “you can’t have secret proceedings.”
Although the legislation passed the Missouri House, the Senate adjourned without taking action. Perhaps in response to this legislation, the Missouri Supreme Court adopted a new rule in December 2009 that requires the commission to make public the names of the candidates they vet for judicial openings: a small victory for greater transparency. Nevertheless, a citizens group called ShowMe Better Courts launched a petition drive aimed at putting an initiative on the ballot to make the state’s judicial selection process more open and accountable.
“Merit Selection” Commissions Are Highly Political
“Merit selection” is typically portrayed as a method for keeping “politics” out of the judicial selection process. Many states that have adopted this system, however, have found just the opposite.
Judge Dale Workman, a Tennessee trial judge with 18 years experience on the bench, wrote one state legislator about the problems he has seen firsthand with the state’s “merit selection” system:
After 18 years on the trial bench, I have seen the Commissioners under the Tennessee Plan make the selection of judges the most partisan politics in the history of the state. This has never been ‘merit selection.’ There is less politics in almost any other method. The commission on one occasion submitted three names, one of which had never tried a lawsuit but had the ‘right’ politics and left off an applicant nationally recognized for her qualifications.”
The Tennessee Plan became so controversial that the legislature nearly let it expire last year until a last-minute agreement was reached to keep “merit selection” alive while weakening the influence of legal special interests and requiring the commission to open meetings to the public. Debate over the proposed changes included public lobbying by several sitting members of the Tennessee Supreme Court, clearly demonstrating that judges chosen under “merit selection” can hardly be counted on to stay serene and aloof from partisan politics.
In Florida, Governor Charlie Crist has consistently tussled with the judicial nominating commission for not sending him candidates representative of Florida’s diversity. The issue became so highly charged that Florida’s NAACP filed an Amicus Brief with the Florida Supreme Court charging that “the specter of racial discrimination has been raised” by the commission’s actions and argued that the commission’s secret deliberations “fail to provide any measure of accountability in the event of misconduct or discrimination.”
In Missouri, 20 of the last 21 nominees to the state Supreme Court have either been Democratic contributors, supporters or outright members of the state trial lawyers association.49 Perhaps limiting judicial selections to a single party is one way to eliminate “politics” from the process, but it hardly represents the will of the people of Missouri. The Missouri Appellate Judicial Commission has even more clout than other states. Under this plan, the Commission submits three names to the Governor, but if the Governor fails to make a nomination, the Commission “shall make the appointment.” In fact, Stephen Ware, a professor of law at the University of Kansas School of Law, argues that the “Missouri Plan” is “the most elitist (and least democratic)” of the methods for selecting judges in the entire United States
After reviewing a number of studies and articles on “merit selection,” even the American Judicature Society’s Director of Research concluded as follows:
“This review of social scientific research on merit selection systems does not lend much credence to proponents’ claims that merit selection insulates judicial selection from political forces, makes judges accountable to the public, and identifies judges who are substantially different from judges chosen through other systems. Evidence shows that many nominating commissioners have held political and public offices and that political considerations figure into at least some of their deliberations. Bar associations are able to influence the process through identifying commission members and evaluating judges.
“In addition, support for the effectiveness of retention elections in holding judges accountable to the public is limited. Judges rarely fail in their bids for retention, and approximately one-third of those who cast votes in other races do not vote in retention elections….
“Finally, there are no significant, systematic differences between merit-selected judges and other judges. Some evidence suggests that merit plans may place fewer racial and religious minorities on the bench. The finding that merit plans may prevent the selection of bad judges is noteworthy, but this appears to be an isolated event.”
Having concluded the above, one would assume that the author would then have an open mind to the democratic system of electing our judges, but this is not the case. After 16 pages of facts taken from studies across the country, and in spite of her conclusion, the author then surprises the reader with this, the last paragraph of the last page of the article:
“Lest this review be interpreted as a call to abandon merit selection, I would suggest an additional criterion on which judicial selection systems should be judged – their impact upon the public’s trust and confidence in the courts. By this standard merit selection is preferable to judicial elections….Judicial elections tend to politicize the judiciary in the eyes of the public. To foster the appearance of an independent and impartial judiciary, we need a system that emphasizes judicial qualifications, opens the process to all who meet the legal requirements, and in most instances eliminates the need for political campaigning. Merit selection is such a system.”
In other words, she is suggesting we take away the right of the citizens to vote on their judges not because it takes politics out of the system or produces better judges but simply to avoid a perceived negative “appearance.” Readers of this report will not be surprised to learn that the American Judicature Society has received nearly $1.1 million from OSI, with the recent funding specifically earmarked to “promote the preservation and expansion of merit selection systems.”
“Merit Selection” Is Broken
Legal scholars have also raised serious and unanswered questions about whether “merit selection” is serving its intended purpose. Brian T. Fitzpatrick, a law professor at Vanderbilt University Law School, recently published a report considering the merits of reauthorizing the Tennessee Plan. Among his findings:
“…there are serious questions whether the Tennessee Plan serves any of the purposes it was designed to achieve. The principal purposes of the Tennessee Plan are to select judges on the basis of ‘merit,’ to foster judicial independence by removing politics from the selection process, and to foster racial and gender diversity on the bench. It is unclear if the Plan is serving any of these purposes.”
Professor Fitzpatrick also questioned whether judges appointed by a political commission are better qualified or more independent than judges who run in democratic elections:
“Scholars have been unable to find any evidence that judges selected by gubernatorial appointment from a nominating commission are better qualified or more productive on the bench than elected judges
Although the Tennessee Plan might produce judges who are more independent from the public, it may do so only by producing judges who are more dependent on the special lawyer’s organizations that control the list of nominations from which the Governor must appoint the judges. The members of these special lawyer’s organizations have political views just as do other members of the public. For these reasons, many scholars have found that methods of judicial selection like the Tennessee Plan do not take politics out of the selection process so much as substitute one group’s politics (the public at large) with another’s (the special lawyer’s organizations) [Emphasis added].”
In January 2010, the U.S. Supreme Court handed down its decision in Citizens United v. Federal Election Commission, 54 ruling that existing federal laws aimed at regulating and restricting political speech by corporations (or labor unions for that matter) are unconstitutional. This decision upholding the First Amendment rights of corporations elicited nearly hysterical warnings about the so called “flood of money” soon to engulf judicial races. Commentator Bill Moyers made a typical comment on a PBS broadcast:
“There’s now a crooked sign hanging on every courthouse in America reading ‘Justice for Sale.’”
But according to election lawyer, Jan Baran, “there is no factual basis to predict that there will be a ‘stampede’ of additional spending.”56 In fact, Baran mentioned at one conference:
“26 states already have no limits on corporate spending in state campaigns – and their elections are not that different from those that restrict corporate participation.”
The fact is corporations have always been able to donate to political causes. The only difference post-Citizens United is now these donations can be used expressly to advocate for a particular candidate, rather than only air issue ads.
Nevertheless, proponents of “merit selection” are attempting to channel the protests over Citizens United into its campaign to abolish democratic judicial elections across America. It would be ironic indeed if a U.S. Supreme Court decision intended to allow for fuller participation in the democratic process turned into a rallying cry that led state legislatures to disenfranchise their citizens when it comes to determining who will control one-third of the state government.
The political intent behind Justice at Stake, the Open Society Institute and other Soros-funded entities is readily apparent to anyone with eyes to see. Since they have been unsuccessful at persuading the public to elect judges who share their partisan ideological proclivities, they are determined to take the public out of the equation.
The same cannot be said, however, for local citizens groups or state business organizations that genuinely believe that “merit selection” will ensure a fair and impartial judiciary. We do not question their motives, but we do not share their conclusions, and we hope they will keep an open mind to the shortcomings of this system.
America’s Founders believed that judges should be independent but also accountable to the people. As James Madison wrote in Federalist 39:
“It is essential to such a government [a democracy] that it be derived from the great body of the society, not from an inconsiderable proportion, or favored class of it….It is sufficient for such a government that the person’s administering it be appointed, either directly or indirectly, by the people….Even the judges [under the Constitution] be the choice, though a remote choice, of the people themselves…”
It seems plain that “merit selection”, where judges are chosen not by the “great body of society” (i.e., the people), but by “an inconsiderable proportion, or favored class of it” (i.e., a small committee of lawyers) is exactly the type of system the Founders wanted to avoid.
Of course, there’s nothing wrong with George Soros or anyone else financing efforts to influence the debate about America’s judiciary. What’s troubling is when they spend their money trying to silence other voices, especially “the great body of society” that has a constitutionally guaranteed right to participate in one of the most crucial decisions in public life. While judicial elections ensure that all voices can be heard, “merit selection” systems give the power to lawyers under the theory that voters can’t be trusted to pick judges.
Everyone agrees that judges should remain independent. No one wants judicial candidates handing out promises on how they would vote on specific cases. But voters are entitled to know what principles and philosophy a judicial candidate will bring to the bench. It is hardly beneath a prospective judge to explain that philosophy so citizens can make their own decisions and vote accordingly
Winston Churchill once said that democracy is the worst form of government, except for all the others. The same could be said about contested judicial elections. Yes, they can be too expensive. Yes, they can be too political. But critics of judicial elections have no claim to the moral high ground for faulting others who want to protect voters’ constitutional right to participate in the process of choosing judges. The authors of 39 state constitutions believed that judicial accountability was best secured when left in the hands of the people. They knew that a dose of democracy is often just what America’s courts need.