Thursday, October 15, 2009

Federalist Society panel on merit selection of judges vs. federal method, unfortunately excludes judicial campaigns

The Phoenix Federalist Society led by Jen Perkins (above) put on a panel discussion Tuesday analyzing merit selection of judges, which we have here in Maricopa County where the governor appoints judges, versus the federal system, where judges are nominated by the executive branch then must go through legislative confirmation to be appointed. Liberal Democrat Arizona Supreme Court Vice-Justice Hurwitz defended merit selection, and Arizona Republic columnist Robert Robb defended the federal appointment system. It was disappointing to see that there was no panelist representing the judicial elections position, which I believe is the best solution and has done well in the counties in Arizona where it is permitted (all other counties but Maricopa and Pima). A 2007 Harvard study found that judges who are directly elected by the voters are overall less corrupt than those selected by merit selection or appointment. And numerous studies have found that when judges are elected, they tend to be more politically conservative, since they are accountable to the public.

Hurwitz (above) began his speech by recollecting when he first moved to Arizona in 1974, before merit selection of judges was implemented. He went to court one day and noticed that the judge was in chambers alone with opposing counsel. He objected, but the judge said he was not talking about their case, he was talking about his campaign because the other attorney was his campaign manager. While this seems a bit disturbing, look at the equally unfair situation, where numerous people involved in the merit selection process, including attorneys who are part of the State Bar, appear in front of judges.

Some states with judicial elections like North Carolina and New Mexico have resolved this problem by implementing Clean Elections for judges. It has proven quite popular, with 74% of voters in North Carolina now supporting the system. Although philosophically conservatives generally oppose Clean Elections, there is an argument that running for office is different for judges. Because of the type of work judges do, much of which is apolitical, it is going to be much tougher for judges to gin up interest and run partisan campaigns. Consequently raising money would be much more difficult. As we've seen here in Arizona, Clean Elections has benefited conservatives more than liberals. The combination of judicial elections and funding might be the best way to eliminate the current liberal bias in the courts.

Hurwitz claimed that the election of judges in the past produced a nondistinguished bench. He did not provide any evidence for this. He speculated that changing the system of merit selection would result in a worse system than we have now. His evidence that merit selection is superior was that our current Superior Court and Appellate Court have won national awards. But he failed to say that most of those awards were for politically correct, liberal activism like establishing race-based DUI courts. He claimed that in the past, out of state attorneys were so unimpressed with our past elected judges that they would try to get into federal court instead. But I am sure they did that because the judiciary was composed of more conservative judges who were more likely to convict their clients and award smaller verdicts to trial attorneys.

Hurwitz asserted there was no problem with the quality of judges on the bench now, and cleverly referenced John Pelanger, Governor Brewer's recent Republican appointment to the Supreme Court. Of course conservative Federalist Society members aren't going to disagree there. But Pelanger is the exception, rather than the rule. For eight years under Napolitano, we've had mostly left wing judges appointed to the bench. Hurwitz said that 20% of political appointments by one governor are of the opposite political party. He conveniently failed to mention that the 20% appointed by the last Republican governor we had, Jane Hull, were mostly very liberal Republicans, they may as well have been Democrats. Whereas Napolitano didn't make that mistake, the few Republicans she appointed to the bench were mostly liberals (Susan Brnovich being possibly the lone exception).

Hurwitz said the fact that 25% of the U.S. Senate voted against confirming qualified judges Roberts and Sotomayor to the Supreme Court is evidence the federal system doesn't work. He claimed due to how contentious the Senate confirmation process has become, no questions are really answered. He said we got lucky with the quality of Roberts and Sotomayor being nominated, because there is no guarantee quality people will continue to nominate good candidates like them.

I found this critique of the federal system peculiar. First of all, judicial nominations at the Supreme Court are rarely about qualifications; most nominees have years of experience on the bench and/or a prestigious career as an attorney. The real issue, which he ducked, is that nominees are usually very partisan and come from a right wing or a left wing judicial philosophy, that is why there are contentious Senate confirmation hearings. Hurwitz claimed that the merit selection system works much better because there are more questions answered at those hearings than at the federal hearings. But the kinds of questions that are answered at merit selection hearings have nothing to do with judicial philosophy, the most important factor that will affect a judge's decisions on the bench. Those questions are bland, general, feel-good softballs. Using Hurwitz's reasoning, the decrease in acrimonious Senate confirmation hearings should be a net positive, because they're becoming more like his touchy-feely merit selection hearings.

Hurwitz then attempted to debunk what he claimed were myths about merit selection. He pointed out that the commission is not only composed of lawyers, and that lawyers don't dominate the discussion. He neglected to reveal however, that the commission is chaired by the Supreme Court Chief Justice or their representative, which gives that person an inordinate amount of power over the commission. Or that many of the lawyers who sit on the commission are well-connected good ole boys (and feminist women) from large powerful law firms. And naturally, the nonlawyers on the commission are going to be intimidated by the lawyers who have a better grasp of what's needed. Their influence is going to be disproportionately large on the rest of the commission members.

Hurwitz claimed he'd never seen a political decision by the commission. Not sure what he meant by that; simply deciding to choose left wing Democrats and liberal Republicans over other equally qualified conservatives amounts to a politial decision, and considering the makeup of the committee is dominated by the left and liberal Republicans, and that its selections have reflected that makeup, it can be said that its decisions have been political.

To his credit, Hurwitz admitted that Pima County's merit commission is top heavy with Democrats, blaming that on the general demographics in Pima County. Blogger Greg Patterson observed that Pima County has had a vacancy on the court for awhile because one of the Democrat County Supervisors refuses to appoint a Republican. Clearly, a warning sign that merit selection is not working and is overly affected by politics. Hurwitzwas strangely silent about the unfair balance in Maricopa County, which does not represent Maricopa County's coervative majority demographics.

Hurwitz insisted that the Judicial Performance Commission has done a good job of addressing accountability. He said that people overwhelmingly believe our judges are fair, and that feedback comes from half the parties who lost. Each person gets a thick booklet about the judges, which they usually don't bother to read. You get more infomation about judges than legislators. He asserted that judges won't run for retention if their numbers are low. The reason they all win retention is because the system works.

In reality, the Judicial Performance Commission is a joke. No one reads their reviews because there is nothing pertinent about the judges in there. There is nothing about their judicial philosophy or outrageous decisions. The feedback received about judges is in response to touchy-feely questions like whether they act with "dignity and courtesy." Consequently, there has never been a single judge voted out of office in a retention election since merit selection was implemented in 1974! When the commission finally recommended not retaining one judge in last year's election, he still won with 59% of the vote.

The problem with retention elections is that nobody knows a thing about the judges, since they have no opponents to vet their records. They never ran for office in the first place so their records weren't vetted then either. Retention elections are nothing more than a waste of time and money.

Hurwitz criticized judicial elections as requiring extreme accountability but producing poor quality and lack of judicial independence. Again, he seemed to be equating "poor quality" with "conservative," and he also seemed to be equating "accountable to the voters" with "judicial independence. If a judge is afraid he'll get voted out of office if he puts a sex offender on probation instead of sentencing him to prison, maybe he'll think twice before just giving them probation.

Hurwitz candidly admitted that the merit commission provides wonderful protection for the governor - the governor can pass over appointing certain people by blaming it on the commission: "Well the commission didn't send them to me as a recommendation." Very helpful cover especially for liberal governors considering the commission is dominated by left-leaning members. They can avoid appointing most conservatives that way.

It was disappointing to hear Arizona Republic reporter Robert Robb (above) also oppose the election of judges. He did admit that judicial philosophy plays an important role in determing how a judge will rule. He affirmed the voters' right to have an indirect right over time to affect this philosophy. He likes the federal model because he thinks it achieves that. He is against the de facto life tenure we have now for judges with merit selection because it undermines that balance and leads to judicial hubris, arrogant judges with no accountability to the people. He would like to see a system where judges are appointed by the governor and then confirmed by the legislature for 8-12 yrs., after which they would be subject to additional reappointment and confirmation.

Robb said our State Supreme court has had a problem with hubris. There is not enough political buy-in and check with the existing system. He would like to abolish retention elections. He said they are either a joke or an extreme danger because they could lead to judicial elections. He'd also like to get rid of judicial elections throughout the rest of the state, which was really disappointing.

Most troubling of all, he would leave merit selection at the Superior Court level. He claimed that our Superior Court is widely regarded as impartial and competent. He must not be reading his own newspaper. There have been an inordinate number of outrageous decisions that have come out of the Maricopa County Superior court over the past few years, as well as policies like refusing to enforce Prop. 100, no bail for illegal immigrants who commit serious crimes, which passed with 78% approval. Only after the State Supreme Court stepped in was this corrected. The Superior Court is now full of liberal judicial activists due to merit selection and to claim that it is impartial is to ignore the egregious decisions made by many of these judges.

Robb disagreed with Hurwitze that the 25% of the Senate that voted against Roberts and Sotomayor were evidence the federal system wasn't working.

Cathi Herrod from the Center for Arizona Policy expressed concern over the dominating role the State Bar plays in judicial nominations. Robb said the State Bar needs to be transformed into more of a professsional trade association, and the disciplinary process needs to be taken out from under them and put under the Supreme Court. Hurwitz said the Supreme Court is currently looking into doing this. Another good step which was not brought up would be to make the State Bar voluntary. Arizona is a right to work state, so why are professional attorneys required to be a member of this organization in order to practice law? A large portion of members' dues goes to promote left wing political activism.

Cathi also asked about the practice of taking judges out of retirement and assigning them to handle politically charged cases. Currently, Presiding Superior Court Judge Barbara Mundell does this, and it's no secret that the judges she has picked were far left partisans who then made some very controversial decisions, including one temporarily striking down Arizona's new laws restricting abortions - even though the federal court judge disagreed and upheld them. There have been accusations against Mundell that she is picking and choosing justice this way. One of the judges, Daugton, had sent in a written letter to the court in Sept. 2007 saying he no longer wanted to be on the on-call list, but was selected anyways to handle the abortion cases. Hurwitz defended the use of retired judges, saying since they're not subject to retention election, it's safer for them to handle those kinds of cases. Well exactly! So they're not held accountable!

Overall the seminar was a little disappointing because there was no real discussion of electing judges. I come from Washington State where judges run for election. That system has worked well, especially for my father who did not have to suck up to the State Bar to become a judge. Incidentally, he was never challenged for reelection the 20+ years he was on the bench, probably because he was very accountable to the people with his decisions. And I never heard anyone say he was incompetent or lacking in quality. Just conservative.

No comments: