Thursday, December 13, 2012

Goo goos and their limits

I tend to be skeptical of structural changes that are designed to remove politics from fundamentally political undertakings. I doubt. for example, that nonpartisan redistricting will really be nonpartisan. I know that so called "merit based" selection schemes for judges simply drive the politics underground.

The reason is simple. When a decision has political implications, politics, like water, finds its own level. While the selection of lower court judges is not politically salient, the selection of justices for a state supreme court usually is. These courts are law developing tribunals of last resort. They decide issues that are unsettled.

Many of these issues do not have ideological or political implications, but some - very important - cases do. While it is wrong to think that the justices who decide these politically charged cases simply do whatever they want or vote as partisans, their world view will affect how they approach questions to which the legal answer is unclear. It is natural for liberals and conservatives to seek like-minded justices.

This turns merit selection into a political process. If you don't believe me, consider the case of North Carolina. Out going Democratic Governor Beverly Perdue -she who spoke of suspending elections so that things could get done - posed for holy pictures a while back when she signed and executive order setting up a Judicial Nominating Commission "to take the politics out of appointing judges in North Carolina." The Commission would recommend candidates for judicial vacancies. Governor Perdue would select from one of these recommended candidate.
There is now a vacancy on the state Supreme Court but there is also a problem. The Commission cannot get its work done before Governor Perdue leaves office next month and Republican Pat McCrory takes over. If she relies on the Commission, she will not get to appoint North Carolina's next justice.
So she is scrapping the Commission although she urges future Governors to use it.
Are the politics back in judicial selection of North Carolina? They never left. It's fine to have a panel of lawyers make recommendations to the Governor. We do that here. But that doesn't make the process of selecting judges - particularly for a state Supreme Court - nonpolitical.
Governor Perdue has just demonstrated the obvious.
At a certain level, I don't blame her. She wants to use what remaining power she has to appoint a justice whose judicial philosophy she supports. So would I. But I would prefer that she not pretend otherwise

Cross posted at Purple Wisconsin


Calypso Facto said...

Hypocrisy, thy name is Perdue*.

(Alternately, fill in the name of virtually any current politician here.)

Which is another way of saying I agree with your post completely. There is no politics-free way to appoint people to positions wherein they will have political power.

Anonymous said...

I don't suppose anyone would ever accuse you of being a goo-goo, Professor.

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