Conservative lawyer groups like The Federalist Society, for instance, have their own strict constructionist judicial preferences as much if not more so than the preferences espoused by the so-called bleeding hearts at the American Bar Association and the American Civil Liberties Union. Who’s kidding who? When last I blogged about The return of politics in judicial retention elections, in truth, I should have added that the body-politic itself self-defines its partisan predilections. An overview worth reading. One of the better informed overviews of the Nevada debate was Elect or appoint?, which was published at the end of September by Dennis Myers of the Reno News and Review. Myers interviewed stakeholders and filled in a lot of gaps, which are glibly glossed over by proponents. For example, sitting judges do make contributions to political candidates. So after reading his report, it’s readily apparent how absolutely silly the notion is that merit selection and retention keeps out money and politics. If that’s true, how do sentient beings also become political-neuters? The truth is that social relationships at every level of life always involve dynamics of power, authority, and positional-jockeying. Consequently, they engender political calculations. It’s not like an appointment to high office sanitizes the appointee by somehow rendering that calculation more sanctified than being openly elected. Again, I posit, ‘Who’s kidding who?’ What’s more likely is what State Assemblyman Bernie Anderson told Myers about merit selection, “If anything, I think what it will do, it will ensure that only those who played within the system, who play well with the state bar, are going to be the ones who make it. It’ll just be, ‘It’s your turn.’ ” Preferable messiness. Given all these attendant considerations, I prefer the comparative messiness of electoral campaigning and the give-and-take of partisan electioneering. It’s the process where the electorate has the best chance of acquainting itself with the issues and personalities. Yes, it can be improved, for example, by tougher judicial recusal rules; greater donor transparency; and by increased use of public financing. But a judicial appointment committee, no matter how purportedly diverse it claims to be, will never displace the comprehensive diversity of a broad electorate. And a scarcely noticeable insiders’ selection and judicial performance evaluation process operating under-the-public’s-radar is no substitute for what U.S. Supreme Court Justice Louis Brandeis once famously said about the disinfecting power of sunlight.
Will judicial merit selection have to wait in Nevada?
October 23, 2010 by lawmrh
As time draws near for Nevadans to revisit judicial merit selection and retention for the third time, there are no assurances things will turn out well this time for proponents. There isn’t much organized opposition, except for the abiding reluctance Nevadans have to give up their right to vote for a judicial candidate of their own choosing. If you look at historical precedent, chances are, proponents will have to wait another generation before again flogging the same lifeless horse. Twice before, in 1972 and again in 1988, Nevadans nixed merit selection preferring to keep the current open but messy judicial election system. Not stumbling across the finish line. Indeed, the latest automated polling results appear to confirm that. Despite considerable money, a former U.S. Supreme Court Justice’s active support, and mostly favorable press, a dead horse can’t stumble across a finish line. In a survey of 1,400 Nevada voters taken October 4, 2010 by Magellan Strategies, 51% were opposed to merit selection and retention while 30% were in favor. The undecided number was 19% and the margin of error was 2.6%.
In an editorial Friday, entitled, Soros Bets on Nevada, the Wall Street Journal ran another of its long line of critiques opposing judicial merit selection and retention. It was the same litany of criticisms, grounded on their belief that since Liberals loathe having the naked unwashed elect judges, matters should instead be put “in the hands of a legal elite.” It’s too bad that the Journal principally frames its objections through a highly partisan Liberals vs. Conservatives prism, believing that the so-called Missouri Plan has “in most cases. . .pushed courts to the activist left.” In my estimation, that shouldn’t be the germane objection since the make-up and agenda of judicial nominating commissions can just as easily skew toward the equally activist right. Neither side of the political aisle has a corner on naked partisan activism.