Monday, June 16, 2008

Merit selection agnostic

The Wisconsin State Journal has endorsed merit selection for the judiciary in Wisconsin. I am a merit selection skeptic, particularly when it comes to a court of last resort which will be called upon to resolve cases of first impression, make common law and decide matters of constitutional interpretation.

There's a huge irony in the move toward merit selection and appointment in Wisconsin. While there are certainly people who tend to a more conservative view of the judiciary who favor some form of appointment, the energy behind the movement - both in Wisconsin and nationally - is from those who tend to have a more liberal view of the judicial function. By this I mean those who tend to reject many of the traditional restraints on the judicial function, be they attention to the original intent of the drafters of law, or a strict adherence to its text. These folks are more likely to see the judiciary as a branch that empowers those who they believe to be unfairly disadvantaged in the political process. This does not require adherence to the letter and intent of the law as much as it requires the willingness and judgment to interpret it in a way that is thought to correct the imbalances that infect the political process. Thus, Senator Obama's most important qualification for the judicial appoinments is that someone "knows what its like to be" certain people that he believes are disadvantaged.

This view is, of course, counter-majoritarian so it as at odds with the very idea of elections. The irony is that it seeks to appropriate the judicial philosophy of those with a more conservative view of the courts, i.e., those who are more willing to accept traditional constraints on the judicial role. Judging, in this more conservative view, might also be countermajoritarian in that it insists on enforcement of the law as the legislature and executive - or framers of the constitution - have enacted it without regard to public sentiment about its enforcement in the case before it. But it is, at the end of the day, a rather modest counter-majoritarianism. It also rests in tension with the idea of elections but is not anchored in a belief that courts ought to react against and shape what political majorities have done. To the contrary, it is concerned with discerning what they have done and holding them to it. We wouldn't have to have a free speech guarantee in the Constitution but we do, so it must be interpreted and enforced. We could have a right to privacy encompassing the right to abortion in our Constitution, but we don't so we ought not to act as if we do.

This is what Chief Justice Roberts meant when he called judges "referees." Those who take a more expansive role of the judiciary are very critical of that analogy. In their view, judges cannot and should not be referees. They say it's an oversimpflication. (In part, it is, but mostly it's not.)

But when it comes time to oppose judicial elections, the analogy comes in handy so the very folks who tend to reject it jurisprudentially, embrace it politically. We need good referees and we certainly wouldn't let the players and fans vote on who they should be. What matters is that they are fair and that they are good.

But the problem is that, if there are folks and existing and potential jurists who don't believe that judges are referees, then competence is no longer the only thing we need to consider. Fairness becomes less important because these folks reject, in significant ways, the very concept of neutrality. In this world - where there are significant differences on what judges ought to be doing - saying that one candidate is more qualified than another - if by qualification we mean legal acumen -is only one relevant consideration. Nino Scalia and Ruth Bader Ginsburg are both very talented lawyers. If I gave them a Civ Pro exam, they'd ace it and critique my stupid questions. But we certainly should not be indifferent to the choice between them or pretend that it can be resolved by resort to "qualifications."

A sophisticated defense of merit selection is to say that it will result only in consideration of the Scalias and Ginsburgs. I wish that were so. Experience suggests otherwise. In further irony, the State Journal offers as a virtue of a potential merit selection plan that the commission that will screen for merit might be made up of a majority of nonlawyers. But if merit consists of legal acumen, only lawyers are able to evaluate that.

6 comments:

Anonymous said...

One only needs to look at California to see what happens with appointments.

The Nihilist continue to tear down the things that are good.

Lew W said...

There are almost no contested judicial elections in Milwaukee County, unless the incumbent is targeted (Crawford), or can't stand upright anymore (Crivello). A rare excetion was ADA Chris Liegel's challence to Judge Pocan, who was a new appointee, and survived by about 1,000 votes out of 200,000 cast. The last challenge to a sitting court of appeals judge in Milwaukee County (District I) was Joan Kessler's successful bid to unseat Charles Schudson. Several campaign mis-steps by Schudson, and his colleagues' clear desire to have him 'retired' helped Kessler, but the remaining judges there are rarely challenged (Curley in 1996 unseated an elderly and by then frail Mike Sullivan, but a primary race that drained Sullivan of money and energy helped Curley. PS: There was a primary because some other moron ran, too). But the Supreme Court makes policy. It's a different animal than either of the lower courts. For the SCT I believe the best approach would be to follow the model of the federal appeals court's system, where judges are appointed for life. In Wisconsin, we should appoint Supreme Court justices, and they should have the option to move to 'senior status' at, say, age 65 or so, which means they become part-time justices, available to sit in when other justices recuse themselves (which happens a lot). Then justices are immune (so the theory goes) from politics, and free to decide things according to the law and their own philosophical or religious beliefs. The politics of it all is then transferred to the executive (the gov.) who has to hear about it every 4 years. This would be better then having to hear 1,000 times every day during the campaigns about how so and so is ready to release sexual predators directly into your kid's day care facility. Sure, Supreme Court decisions have many direct effects on our communities, but it should be the role of the electorate to put into place responsible executives, and vote them out whenever it suits us. But I would like to see the end of what seems to have become a corrupt process of electing justices.

Anonymous said...

"But I would like to see the end of what seems to have become a corrupt process of electing justices."


Yes and you want to see that people have no voice in getting rid of corrupt judges. Senseless.

If you do not feel that you are capable of voting for a judge, then do not vote. But don't be insulting everyone else with this ridiculous argument.

Lew W said...

I don't have to come here to be insulted, I can go anywhere....

Nonetheless, to clarify, my suggestion to appoint Justices does not extend to Judges of either the court of appeals or the circuit courts. In any event, Justices Abrahamson, Crooks, Prosser, Butler, Wilcox, Sykes, Geske, Ceci, Day, and Heffernan, to name a few, were appointed before having to stand for election. Frankly, if we are going to continue to have blatantly political campaigns for the highest court we might as well permit or even require the candidates to declare a party affiliation. Then you'll know more of what you're getting.

Anonymous said...

"we might as well permit or even require the candidates to declare a party affiliation"


If they have one and wish to do so, I think it is Constitutional for them to declare it.

Anonymous said...

Very Interesting!
Thank You!