Notwithstanding its pat-my-own-back pronouncements extolling its call for greater governmental transparency, enhanced individual rights, and expanded liberty interests, one of Goldwater’s luminaries and self-described “fan of merit selection” found himself applauding Arizona’s insular system of selecting and retaining judges. It’s a system that trumps judicial independence over electoral accountability.
The Goldwater Institute is the self-described “conservative public policy research organization,” self-proclaimed champion of “more transparency in government,” of “adherence to constitutional law,” of “individual rights” and of expanded economic freedom and liberty.
The Goldwater Institute’s Clint Bolick wrote the above-mentioned commentary blessing benignly a November 2011 ballot referendum enshrining compromise “reform” legislation concerning Arizona’s merit selection system. I blogged previously about this so-called “reform” at “Barry Bonds-like “small ball” and at “Playing “small ball” on judicial merit selection and retention in Arizona.”
But there are two problems with that complaint. First, notwithstanding objective tests for the appearance of bias, when it comes down to it, judges rely on their own subjective analysis to decide if they should recuse themselves because of potential bias. And as noted by the excellent article, “The Best Defense: Why Elected Courts Should Lead Recusal Reform,” “Allowing judges to decide challenges to their own impartiality is not a policy calculated to promote vigorous enforcement.” (Also footnoting the ancient legal maxim, “Nemo iudex in causa sua,” or “no man shall be a judge in his own cause.”) Also take note, for example, of the decision in the California Proposition 8 gay marriage ban and the “Motion to Vacate Judge Walker’s Judgment Against Prop 8 is Denied.”
The rich part.
But here’s the really rich part. Except for Texas, every merit selection proponent’s poster boy jurisdiction, the other examples Bolick complains about, New York and Florida are ironically like Arizona. Both have similar judicial merit selection and judicial retention systems. So much for the panacean balm of merit selection.
Of New York, Bolick noted how a court had sent mail addressed to his former employer, the Institute of Justice, as the “Institute for Injustice.” The account, however, presumed the jurist addressed the letter himself. And perhaps this is what actually happened since one can well imagine an impoverished New York – – – short-staffed, bereft of clerks, judicial assistants and otherwise unique that way.
Bolick then poked fun at “Bubba,” a Florida judge who wouldn’t recuse himself from a case where his son was marrying a union president’s daughter since the union president was one of the parties in the case. Again, it’s up to the jurist to make the determination. Moreover, thank the vague “probability of bias” test articulated in the U.S. Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. for unavailing help.
But given that Florida is a merit selection/retention state, how again, does merit selection help alleviate the non-recusal problem? Also see “Judicial Recusals & Evolving Notions of Due Process,” Univ. of Penn. Journal of Constitutional Law (forth. 2011) (authors: Andrey Spektor & Michael Zuckerman)
Florida established merit selection in 1972 and has subsequently amended it 4 times. New York has had merit selection in place since 1975 for its Court of Appeals. Other New York courts were added in 1977 and 1978. See the American Judicature Society report, “Judicial Merit Selection: Current Status.”
Cook County, Illinois – – – a special case.
Admittedly, Illinois, the other jurisdiction he complained about, does not have merit selection. But in Cook County, specifically, there is a ham-fisted system of “slating” by political parties, which amounts to a merit-selection like anointing, except by political movers and shakers.
Slating has been rightfully and harshly criticized over time, including recently in a public radio broadcast on Chicago elections at “Act Two. Donkey See, Donkey Do” as part of “This American Life’s” inquiry into the “Old Boys Network.” And also see “what passes for merit selection of associate judges, who are chosen by the county’s 275 circuit judges” in “Madigan letters offer glimpse of clout in Cook County judge selection.”
But what Cook County, Ill. does share in common with Maricopa County is first, judicial retention elections that are replete with an incredible mass of judicial retention candidates on an unwieldy ballot. The second distinction shared is that once in office, Cook County judges don’t lose retention elections. Since 1990, not a single judge has lost a retention election in Cook County. And since 1974, only two judges have lost a retention election in Maricopa County.
Indeed, speaking of overwhelming numbers, last November, Cook County had five more judicial candidates on their ballot than Maricopa or a mind-numbing 70 to 65 that voters had to pore through – – – if they were going to vote for all the judges. As former Cook County Clerk David Orr opined two years ago,“It’s Time to Get Judicial Retention Elections Off the Ballot,” “electing judges through retention contests – – – undermines the quality of judges, in part because there are too many on the ballot. Judicial retention races are a paradox, where too much democracy means no democracy at all.”
And in the same essay, Orr criticized retention elections in that they virtually assure an office for life, “For without the possibility of losing, we don’t have democracy. What we have is something else, altogether. A respectable judiciary deserves better.” And also see “Electing Judges in Cook County: The Role of Money, Political Party, and the Voters.”
The problem with superficial, flippant analyses like Bolick’s is that they minimize serious issues. It’s one thing to be snarky but another to be substantive. It’s not easy to pull off both.
The nub of the problem, which has to be adequately resolved, is this, “As between judicial independence and judicial accountability, should one take precedence over the other?”
Unfortunately, proponents of judicial independence have always been too quick not just to toss voters under the bus but to back up the rear tires and make sure. Some even cite self-serving studies that “the American public does not understand much about how the judicial system works and are flat wrong in their understanding of the judiciary’s role in our government.”
And after stating that the “fact of voter apathy is not a rub on voters,” I couldn’t help but be reminded of how much such elitists’ disdain of an unenlightened electorate reminds me of Saturday Night Live’s “Weekend Update” and of Dan Aykroyd’s riposte,“Jane you Ignorant slut.” See Ted A. Schmidt on “Merit Selection of Judges.”
So here’s the reality-check about the merit selection compromise, which the state bar is characterizing as “We dodged a bullet,” and which was glossed over by Bolick’s glibness. The bullet was a blank cartridge.
1. In all the ways that matter, the state bar’s influence remains the same. The bar still has a designated seat at the judicial nominating commission table and the bar still plays a crucial role in recommending the make up of the commissions’ attorney members since they will still vet all the attorney nominees to the commission.
2. Increasing the list of nominees from 3 to 8 is much ado about nothing. The commissions were previously already authorized to nominate “not less than three” and could have conceivably nominated more than three.
3. Increasing judicial terms from 6 to 8 years is no boon to the electorate. How does extending the electoral interval even farther out improve the accountability of elected officials? Moreover, Arizona voters previously voted for legislative term limits. What if instead of two-year terms, Arizona legislators came up for reelection every 8 years?
4. And extending the retirement age from 70 to 75 benefits who?
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