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.