(Dan Pero’s timely, well-written Op-ed dismantles the specious argument for the supposed magic cure of judicial merit selection. When it comes to judicial selection methods, there’s no such thing as perfection. Reblogged with express permission)
Are Appointed Judges Really More Virtuous?
By Dan Pero
Blogger at American Courthouse and President of the American Justice Partnership, which promotes legal reform at the state level.
It would be nice to think that ending elections would magically make our public servants more virtuous, but there doesn’t appear to be any real evidence to support this case.
In Florida a few years back, Judge Thomas E. Stringer, Sr. resigned from office after it was discovered he was helping a stripper hide over $315,000 in assets from her creditors. Stringer later pled guilty to bank fraud.
Even federal judges, who undergo intense scrutiny in appointment, including a rigorous review process by the American Bar Association, are not immune to scandal.
Judge Thomas Porteous of the Eastern District of Louisiana was impeached by the U.S. House of Representatives and convicted by the U.S. Senate following evidence he had taken bribes from local attorneys and businessmen with cases before his court and later lied about his actions to the FBI.
Then there’s Judge Edward Nottingham of the U.S. District Court of Colorado, who reportedly ran up a $3,000 bar tab at a strip club, used his government-issue phone to make “dates” with call girls, and spent hours cruising porn sites on courthouse computers. One self-described prostitute claimed Nottingham coached her to “lie to federal investigators” about their relationship.
Each of these judges was appointed, rather than elected, some under the so-called merit selection system Marks and other anti-election proponents support for Pennsylvania. Marks says this new system is needed because judges seeking election often receive campaign contributions from lawyers and special interest groups who may appear in the courtroom.
Yet if the problem is too much influence by lawyers, it’s hard to see how merit selection will solve it.
Merit selection proposals in Pennsylvania call for the creation of a 15-member Appellate Nominating Commission, with seven “public” members and four each appointed by the Governor and the General Assembly. The experience in other states suggests these nominating commissions quickly become dominated by legal special interest groups.
A few years back in Missouri, the birthplace of merit” selection, the former President of the Missouri Association of Trial Lawyers was nominated to fill a vacancy on the state Supreme Court – a nomination made possible by a merit selection commission that included both a former and current board member of the Missouri Association of Trial Lawyers, plus the wife of one of the state’s most prominent trial lawyers. As a Wall Street Journal editorial put it, rather than producing judges based on merit, Missouri’s selection process has “handed disproportionate power to trial lawyers and state bar associations,” resulting in a system that “elevates nominating commission cronies.”
It’s hard to see how a merit selection commission dominated by lawyers meeting in the proverbial smoke-filled room addresses the problem of too much potential special interest influence.
The point here is that every system for selecting judges – democratic elections, appointment systems, merit selection – will produce both good and bad judges. Public corruption will be around as long as there are public servants. The key is to keep the judicial selection process open, transparent and accountable. Merit selection accomplishes none of these goals.
Posted at American Courthouse, the personal blog of Dan Pero, March 18, 2013. Reblogged and reposted with express written permission of Dan Pero, April 15, 2013.