David Fowler President

May 5, 2009

Over the next week, maybe two, there will be a showdown in the legislature befitting the best courtroom drama … and it will have to do with our courts. “Special interests” will control the state Supreme Court; the only question is which ones will it be? And whatever the legislature decides may be the way it will be for a long, long time. Here’s the politics of it.

There is a long tortured history to the election of our state Supreme Court Judges. But for the last several decades it has all been political, and what’s going on now is no exception. With Chief Justice Holder out campaigning to keep the current system and other Supreme Court Judges down on the Hill lobbying (under the guise they are just there to “answer questions and provide information,” which is what lobbyists do, too), you’d better believe it’s political.

 

The Current Process to Be Retained or Replaced

Procedurally, here is the deal. In 1994 a Judicial Selection Commission was put in place to nominate people to serve on the state Supreme Court. Under this process, three nominees are chosen, but the list of nominees does not go on the ballot. Instead, the list goes to the Governor. From that list the Governor selects the person who is to go on the Supreme Court. Prior to the next state-wide election (usually in August), another commission, called the Judicial Evaluation Commission, is to evaluate the appointed Judge’s record and either recommend that the Judge be retained or not retained. If recommended for retention (which is every Judge ever evaluated by the Commission) then that Judge goes on the ballot, but only for a yes-no retention referendum. No one can run against that Judge. If retained, the Judge gets an eight-year term. This same evaluation and retention referendum process is also used every time an incumbent Judge comes up for “reelection”.

 

Is it Constitutional?

Somehow this appointment and retention process is supposed to meet the constitutional requirement, dating back to 1870, that the “Judges of the Supreme Court be elected by the qualified voters of the state.” Since no state in the Union ever thought up this appointment and retention process until the 1930s, there is no way our Founding Fathers intended for this to be an “election.” But such is the legacy of judicial activism and the theory of a “living constitution,” topics for another day.

These Commissions, by law, are supposed to go away (be abolished) on July 1, 2009. But, as you might expect, the question is what will happen if they do go away. Before answering that question, you need to know who the two sides are to this political battle.

 

Drawing up the Battle Lines

On one side are the legal special interests who would concede that they pretty much control the process and that much of the important stuff these two commissions do is done in private meetings not open to the public. For example, lawyers and legal special interest groups control 14 of the 17 spots on the Judicial Election Commission. The discussion of the evaluation that is to be given is done in private. Who votes for which nominees is off the record. I call that control, and we’ll call this side the “Trial Lawyers.” The Trial Lawyers want to keep the current system.

On the other side are a collection of folks: those who believe in original intent when it comes to applying a constitution, those who oppose judicial activism, and those who believe that those who make laws should be directly accountable to the people they govern. We’ll call them “Voters.”

So we have the Trial Lawyers versus the Voters. And the Trial Lawyers are using two tactics to get their way, that is, to continue some form of appointment and retention referendum process.

 

Trial Lawyers’ Tactic #1: Creating a Fear of Crisis

First, Trial Lawyers have tried to convince the legislators in the Voter’s camp that there will be a crisis and chaos if the two commissions just go away and nothing is done. That is not really true; there won’t be a huge crisis. There isn’t even an election regarding the Supreme Court until August 2010, and then it is only one Judge, one who was recently appointed and will be up for retention for the first time. But, if nothing is set up, the general law would provide for a contested election, which Voters want. That’s not a crisis, but actually constitutional. Even then, during the next session the legislature can set up something different if it so chooses.

So there is no crisis. The only “crisis” is that should a Judge die or resign before the Judge’s term is up, there is no definitive mechanism by which a replacement could be appointed (that would have been handled by the Selection Commission and Governor).

But a vacancy could occur, and legislators who support the Voters believe, and perhaps rightly so, that the Trial Lawyers will get someone to resign, force the issue into the court system, and get a special panel of Judges selected to hear the case. To take care of this possibility, legislators on the side of Voters want to pass Senate Bill 2168 / House Bill 2018. It would allow the Governor to fill any vacancy, which was the law before the current process was put in place.

 

Trial Lawyers’ Tactic #2: Claiming Elections Will Fool Voters

Second, the Trial Lawyers have tried to paint this horrible picture of how elections are ugly things, that they will be funded by special interests, and that voters, duped by slick advertising, will pick a person who is not qualified to be a judge. That over 30 states use and have long used this process is, of course, to be disregarded. And, of course, the same special interest criticism could be said of the way we elect legislators has either not occurred to them, or they hope it won’t occur to you.

But there may be a third explanation, namely that the legislators who support the Trial Lawyers are conceding that the position of Supreme Court Judge is more important than that of a legislator. I presume that would be because they are conceding that Judges don’t just apply the law between parties to a lawsuit, but can rewrite the constitution and make new policies through their supposed “interpretation” of the law. Regardless, if Judges are more important than legislators, then it would seem that if direct accountability is important with respect to legislators, it would be even more so for Judges.

 

Special Interest Evils?

But back to the point about special interests. Special interests may fund a Supreme Judge’s campaign, but all of that is done in the open, in public view. And if there is an opponent, there is someone who will make it their business to point that out to you. Yes, Judges who get elected might feel beholden to the voters who put them in office and might allow that thought to creep into the back of their minds when they are deciding things like the constitutionality of the death penalty cases and abortion statutes and what special rights should be given to homosexual, bisexual, and transgendered persons. Personally, I don’t mind that because, after all, isn’t the Judge’s power given him or her by the people pursuant to the constitution the people have created?

But is the process the Trial Lawyer want free of such evils? Absolutely not! First, there is evidence that folks who have made really nice contributions to those who make appointments to the Commissions get put on them. That’s not hard to imagine; campaign money, close friendships, and political appointments go together like, shall we say, Judge and Jury. So politics is involved. Second, those who get on the commissions, particularly since so many are lawyers, have a leg up in the courtroom. Got an interesting story from a trusted source who said that a local trial judge who is looking to “move up” sure seemed to give a lawyer on the Selection Commission every break during a trial. That’s not too hard to imagine now, is it? And imagine if you are a judge being evaluated by lawyers on the Evaluation Commission; don’t think that treating those lawyers “more fairly” when one of them is in front of you might not cross a Judge’s mind? Getting on these Commissions could be a very valuable thing to a lawyer and his or her clients.

Elections being demanded by Voters may invite election year special interests to get involved, but the bottom line is that Trial Lawyers are their own special interest. Special interests will be involved either way. So, which is the better way?

Well, in deciding this issue, I turn to the maxim that power corrupts and absolute power corrupts absolutely. If there is a chance of corruption by special interests either way, I’d rather have it be in the hands of a body too big to control absolutely (Voters) and out where the public can see it than to have it in the hands of a small, select group of people who can make decisions in secret.

So the Trial Lawyers special interest wants to remain in control. I don’t blame them. If you had a chance to be in control of something as important as the Supreme Court, wouldn’t you want to be? Well, Voter, letting the Selection and Evaluation Commission expire with respect to the Supreme Court is the only chance you and I may ever get to having some say in the Supreme Court.