Money vs. Judicial Merit Selection

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CommonDreams.org

Money vs. Judicial Merit Selection

No matther whether th' constitution follows th' flag or not, th' supreme coort follows th' iliction returns.

- Finley Peter Dunne,

It is yet another example of democracy in action and plaudits to the Wall Street Journal for coming to the defense of the millions of dollars that helps some states choose judges.

In a recent editorial, the paper applauded the use of dollars to fund the campaigns of judges in states that still enjoy the direct elections of judges. The WSJ (that enthusiastically supported the Supreme Court when it rejected Arizona's attempt to level the playing field between the independently wealthy candidate and a less affluent opponent calling it "freer Political Speech) is also campaigning in favor of the notion that we are entitled to the best judges that money can buy.

The system of non-partisan selection of judges that offends the editorial writers has been in place in some states for more than 40 years. It first appeared in Missouri in 1940 and was known as the Merit Selection System. At the present time more than 30 states use some form of the Merit Selection system. Although there are many permutations, the purest merit selection system involves a commission that consists of equal numbers of lawyers and laymen and in many of the jurisdictions, an equal number of members of both parties. The commissioners interview candidates and then furnish the governor with a list of those it has found to be the most qualified from among the applicants. The commissions are to avoid partisan considerations in making their selections but the governor may select any of those on the list using whatever criteria, including political affiliation, that he or she chooses. Within a relatively short time after their ascension to the bench, the appointed judges are subject to a vote of approval or disapproval from the general electorate. It is a non-contested election and there are no costs involved for the judge seeking retention. Campaigning by the judge, whose retention is being considered, is prohibited except under exceptional circumstances. The drawback to this system, the WSJ believes, is that the public has no opportunity to participate in the process in the most meaningful way-contributions of money. That is because there is no one to whom to contribute. The system that the WSJ favors gives money the opportunity to participate in the process.

One of money's more amusing appearances was in the 1980s when the Texas Supreme Court decided a contract dispute between Pennzoil and Texaco in favor of the former with the result that Texaco settled with Pennzoil for $3 billion. Following entry of that judgment, wags observed that in one year the lawyers for the winning side had contributed in excess of $300,000 to members of the court for their reelection efforts whereas lawyers for the losing side had contributed less than $200,000. Only a cynic would believe that the contributions affected the justices' decision, at least until West Virginia came along. Capperton vs. A.T. Massey Coal Company, decided in 2009, demonstrated that even the U.S. Supreme Court, a majority of whose members rarely take offense when money takes control, took offense.

Brent Benjamin, a West Virginia Supreme Court Justice, accepted $3 million in campaign contributions from Don Blankenship, the owner of A.T. Massey Coal Co. (Massey was most recently in the news, before being eclipsed by BP, when an explosion at one of its mines with countless safety violations killed 29 miners.) Justice Benjamin saw no conflict in accepting $3 million in campaign contributions from Mr. Blankenship or entities controlled by him and then, in two separate appeals, casting the deciding vote in favor of his benefactor. (A slim majority of the U.S. Supreme Court saw it differently and said he had a clear conflict and sent the case back to the W. Virginia Supreme Court where presumably Justice Benjamin will stay home when the case is again heard by the court.) A report by Justice at Stake discloses that in 2000 candidates seeking Supreme Court seats in the state of Alabama spent slightly more than $12 million. In 2006 that figure was $13.4 million and in 2006 the candidates seeking to become that state's chief justice raised $8.2 million. Between 2000 and 2008, candidates for state Supreme Courts positions throughout the country where contested elections were permitted, spent close to $200 million.

In its attack on non-partisan selection systems, the WSJ concludes that although the system is intended to take politics out of the selection of judges, "the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations." That conclusion is not supported by fact.

In the 2006 judicial elections, business interests outspent all other groups (including lawyers) by a 2 to 1 margin. There are no published studies to suggest that has changed since 2006. Not that that matters to the WSJ. All that matters it that money not be muzzled. With the present Court its free speech is virtually assured.

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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