Tuesday, September 14, 2010

More on merit selection vs. judicial election

I put a post up over the weekend about a former Michigan Supreme Court Justice (Cliff Taylor) who, despite having lost his retention election, still favors the election of judges.

Yesterday, my attention was called to Dan Eggen's September 10 article in the Washington Post. In his article Eggen dismissed Mr. Taylor's position without even referring to him by name. Instead he referred to "a report issued... by a small conservative group active in judicial elections" and written by "Colleen Pero, a Michigan judicial activist."

In fairness, the September 9 post on The BLT: The Blog of LegalTimes (the original source for my weekend post) referred to both a speech by Mr. Taylor and a report written by Pero, who served as Taylor's campaign manager. The LegalTimes piece focused on the speech; the Washington Post article focused instead on the accompanying report.

But the larger question is how did the debate on merit selection vs. judicial election get swept up into the never-ending 'conservative' vs. 'liberal' debate?

In what way is appointing judges, thereby bypassing the electorate, 'liberal,' while electing judges is somehow 'conservative?' Answer: It comes from the partisans' belief that their system will help assure judges sympathetic to their views. In my opinion, for all the rhetoric about judicial independence and integrity, many of the persons trying to transform the ongoing discussion of merit selection vs. judicial election into another front in the Culture Wars are looking to control judges, not free them.

The "sloganization" of merit selection vs. judicial election is a disservice to the public and to the serious-minded people on either side of the debate.

Honest advocates of merit selection will acknowledge that the problem with merit selection is the identity of the person or the composition of the group charged with making the appointments. The last two governors of Illinois have been convicted of felonies. Looking back, would anyone seriously have preferred them to have made judicial appointments rather than have open elections? If the governor were required to appoint persons recommended by a board, who would be on that board? Would the 'blue-ribbon' appointees be overwhelmed by the political interests?

On the other hand, honest advocates of judicial elections must acknowledge that the problem with elections is money. Fund-raising (even through committees), electioneering, party nominations, advertising -- all of these can contribute to a perception of partiality among those who survive the process toward those who helped them survive.

The truth is that there is no manner and method of judicial selection that, in and of itself, guarantees the integrity and independence of the persons selected. Political considerations can taint any system, elected or appointed, that the human mind can imagine.

In Illinois, we have at present a system of electing judges. Whatever we might do in the future, voters can make the present system work best by knowing as much as possible about the men and women who would seek to sit in judgment.


For more on the question of merit selection vs. judicial election, Andrea Lyon published this piece yesterday on the Huffington Post. See also, this story on Slate.com regarding former Supreme Court Justice Sandra Day O'Connor's campaign for merit selection of judges -- and how that's playing in Iowa these days.

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