Retired Sandra Day O’Connor has had a busy month this month despite her retirement. Just this week she sat in on a federal appellate panel which struck down as unconstitutional Arizona’s law which requires voters prove that they are citizens. Apparently, it is an undue burden on non-citizens to prove that they actually are allowed to vote before giving them a ballot. Nice to see circular reasoning still prevails on the 9th Circuit.
Then, she appeared in a robocall at 1am in Nevada to campaign for a ballot proposition for so-called “merit selection” of judges. Part of the controversy is interesting since federal judges are required to refrain from political activity (for good reason) and appearing in a robocall clearly is political activity. There was, of course, the stunt of scheduling a modest number of robocalls at 1am to ensure massive media coverage of the proposition that might otherwise go unnoticed. It’s clever, really. Generate a moderate amount of controversy to bring attention to your candidate or cause, it’s been done before.
The interesting part of that story isn’t that she was doing robocalls (though that is a problem). The interesting part is what this proposition would entail. So-called “merit selection” of judges is simply a euphamistic way of saying “we’re going to take away the right to vote for judges from the citizens and give it to politicians and special interests.”
Of course, they don’t frame it like that. They say “oh, the special interests corrupt the process” and “judges have to raise money which means they’ll be tempted to trade favors” and “elections mean partisan politics and special interests can play mischief with judicial elections”. See, it’s all about reform.
Let’s take a look at the argument for a minute. I will concede special interests and political party bosses have too much influence in elections and government in general. However, the idea that the solution is to take the voters out of the equation and put it squarely in the hands of special interests and party bosses defies credulity.
Ultimately, it comes down to this, they think you are too stupid to pick good judges. They think that you, dear voters, will be duped by party bosses and special interests and pick lousy judges. They think that having retention elections (where voters can vote whether a judge keeps his job) takes away from the independence of the court. Or to put it another way, they are simply tired of being accountable to voters and would rather cater to those in power.
Many states appoint their judges now, however, there are several holdouts such as Illinois and Nevada. “Merit selection” will basically work like this, some group of “non-partisan” “citizens” will create a list of nominees from which the governor can select. Then there will be typically some legislative approval and/or confirmation.
Who will these citizens be? Almost always they will be lawyers in the state bar association or judges. The effect? To make sure that judges will always cater to the kind of lawyers who fester to the top of such associations… i.e. the lawyers you see at 11pm on commercials saying if you have bad gas “you have the right to collect large sums of cash from the richest person you can find.”
Now, it’s not that I have a problem with trial lawyers having their say in a judicial election. I do have a problem with them having an exclusive say in who can become a judge. And the idea that this process will have anything to do with merit is absurd. If “merit selection” comes to Illinois, I wonder what the going rate for such merit will be? $50,000? $100,000?
It comes down to this… if you believe the voters are too stupid to know what is best for them then support “merit selection” of judges (because we all know trial lawyers always have society’s best interests in mind). If you believe that the voters can make intelligent decisions, oppose this as the sham it is.
And the fact that Justice Sandra Day O’Connor supports this abridgment of suffrage says all we need to know about her jurisprudence.