Last year, retired U.S. Supreme Court Justice Sandra Day O’Connor unsuccessfully lobbied in Nevada and elsewhere to promote merit selection and retention of state judges. But meanwhile as they figuratively say around here, ‘back at the ranch,‘ in Arizona where she now lives, the judicial selection system she helped craft as a state legislator in 1974, was coming under increasing scrutiny.Granted, moves to “reform” Arizona’s version of the so-called “Missouri Plan” seem to come up all the time. And especially when the pols down at the state house aren’t otherwise occupied with new schemes like a secessionist-style bill to nullify federal laws they think are invalid or to unhook the anchor rode off a few babies.
Now I’ve flapped my gums and keyboard about judicial merit selection and retention extensively here, including at “Merit selection & retention elections: Lifetime-tenure-light,“ at “Nevadans again turn back merit selection/retention while Iowans turn out 3,” and again at “Nothing good after midnight,” including an early morning robo-call from Justice O’Connor.”
And despite the supercilious condescension of “Missouri Plan“ style proponents for the naked unwashed, i.e., the voting public, people do favor direct, openly-contested elections. And they do so partly in spite of and partly because of the scorn of elites who disdain them as an ill-informed or ignorant electorate.
In Nevada, for instance, proponents foolishly keep trying the same merit selection thing and keep expecting a different result. But Nevada voters by wide margins, keep turning down the merit selection and retention panacea. They’ve now done so no fewer than 3 times in the past 30 years.
People in my former home state do favor direct elections of state judges not because they don’t understand how merit selection and retention elections work, but because they do.
So many names, so little time.
Last November, for example, in Maricopa County, Arizona just as in Cook County, Illinois, voter ballots contained scores of names of judges up for ‘yes or no’ retention. In Maricopa County alone, there were 65 names!It can be safely said most voters,even including many lawyers knew little if anything about who these judges were or whether or not they should be retained.
And as for those reports from so-called judicial performance evaluation commissions supposedly intended to help voters make informed choices, they’re of questionable value. They’re little more than rubber-stamp endorsements. Almost always, they recommend retention. It’s like being back in grade inflation school. If everyone gets an “A,” how does anyone ever know a person’s actual ability?
Mushroom treatment.
At least anecdotally, I know there are voters who protest being kept in the dark and treated like mushrooms. On principle, they vote ‘no’ on every judge up for retention.In Colorado last year, “no” votes in that state’s unopposed judicial retention elections were up around 40%, supposedly the highest negative votes ever. See “A New Era for Judicial Retention Elections?”
And with the ascent of the Tea Party’s mantra of ‘taking back our government,’ from whoever they think stole it, Tea Party influenced state politicos in Arizona and elsewhere are also thinking of taking back judicial selection.
Over the weekend,” The Arizona Republic,” highlighted moves this legislative session by Lake Havasu state senator, Ron Gould (R) at “Arizona bills aim to change judge selection.”
Gould has introduced almost a dozen bills to change the current system. So far, 5 bills have made it out of committee and one is on its way to the senate floor.
Two directly go after the supposed influence of the Arizona State Bar. SCR 1045 takes away the state bar’s power to select the members of the judicial nominating committee. And SCR 1040 does away altogether with state bar involvement and requires nominated judges to be confirmed by the state senate. Given the lunacy at the Capitol, though, I’m not sure that’s an improvement.
Two of the other bills target the Commission on Judicial Performance. SCR 1482 would require the posting on the Commission’s website of the appellate court decisions of the corresponding judges up for retention.
And SCR 1047 opens the Judicial Conduct Commission kimono so that meetings and minutes are exposed for the public to see.
The final proposed bill, which is on its way to the senate floor is SCR 1472. This one seems fairly innocuous but it, too, has vested interests in opposition.
As though it were only in Libya and Iran where too much knowledge is a dangerous thing. There are judicial retention stakeholders who think it’s wrong for members of the public to submit pro and con arguments on the retention of specific judges for voter ballot pamphlets.
But the restive tide of voters here and in other states may be against such sentiments this time. Arizona is not unique in revisiting the process. See, for example, “New Attack Planned on MO Merit System?,” “Florida Judicial Review“ and “Justice in Minnesota.”
Tired chestnuts.
Status quo proponents, meaning the judges themselves, their advocacy associations, state bars and some lawyers are a lather over such moves. And of course, they’re raising the same old tired chestnuts in defense, including:
1. Judicial independence is threatened;
2. The current system works;
3. Judicial campaigning corrupts;
4. The public isn’t qualified to pick judges and my favorite;
5. “The system is working.”
There’s no interest like self-interest. So it’s human nature that regardless of the context, interested parties will always proclaim,“The system is working.” Examples are legion.
Exorbitant greed to the contrary, those who defend the right to high executive pay, say “the system is working.”
When a passenger almost blows up a plane on Christmas Day, chief interested party and Homeland Security Secretary Janet Napolitano lauds herself with,“The system worked.“
And when public school teacher accountability reforms target easy tenure qualification rules, union chiefs chime in,“when a system works, why would we seek to change it?” See “Reforming tenure in New Jersey, and across the nation | NJ.com.”
So it’s hardly surprising that the self-satisfied with a beneficial interest will always defend the status quo.
If change means goring the ox you’re riding on, then please, gore someone else’s ox. “The system is working.”
[…] And with ever longer ballots and so many judges listed, it’s not getting any better. In one recent Maricopa County election, for example, there were 65 judges on the ballot. […]