The attack on merit selection for judges.

The law, lawyers, and the court.
Nov. 14 2008 7:13 AM

What's the Best Way To Pack a Court?

The attack on merit selection for judges.

(Continued from Page 1)

So far, heartlanders aren't biting. On Election Day, voters in Johnson County, Kan., rejected a measure to do away with their local merit system. Voters in two Alabama counties chose to create selection panels to help fill court vacancies. In Greene County, Mo., locals voted to switch from contested elections to merit selection, ignoring pleas from local favorite and former Attorney General John Ashcroft. Earlier this year, after the Missouri Legislature rejected an attempt to tamper with the state's merit-selection system for choosing appellate judges, supporters couldn't even find enough signers to put a petition on the ballot. The exception here could be Tennessee, where legislators failed to renew their merit commission this year. But there is active talk of reviving that effort before the commission phases out next spring.

Most Main Street businesses also seem uncertain about the would-be crusade against merit selection. In Greene County, the local chamber of commerce supported the switch to merit. Indeed, a 2007 Zogby poll showed that 71 percent of business executives supported merit selection. This presumably stems from a distaste for politicized courts and a preference for high-quality judges. In fact, the U.S. Chamber of Commerce's own survey of in-house corporate litigators shows that of the 20 states the chamber ranked as best for business, only two elect their high courts. In Missouri, a study from the conservative Show-Me Institute called merit selection "superior" for promoting free-market goals. "I must say that I find it really odd that business groups have gone off on this kick," the Manhattan Institute's Walter Olson wrote this summer.

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It's also worth noting that Justice Taylor's defeat isn't the only warning that the business lobby that wants more judicial elections may be investing too much confidence in them as the means to corporate ends. In Texas, for example, it's true that a decade of concerted campaigning delivered a state supreme court composed entirely of Republicans. But for how long? Two years ago, voters ousted 19 GOP judges in Dallas County. Houston-area Democrats tossed out another 22 this November. Political winds have a way of shifting in court races as well as in legislative elections.

Indeed, this year's returns offered signs that linking a judicial candidate to business can be a liability. Michigan Democrats defeated Taylor with the help of ads that accused him of being a "good soldier" who stacked the deck for business interests. In Mississippi, Chief Justice James Smith was voted off the bench amid criticisms that he tilted too much toward corporate litigants. West Virginia Chief Justice Elliott Maynard lost a spring primary after his close ties to a mining executive were mocked in an ad parodying Lifestyles of the Rich and Famous.

More judicial elections would also mean more spending on both sides of the arms race, by the corporations and the plaintiffs' lawyers. Maybe corporate America's silent majority, which prefers merit selection, has figured out that all that money for consultants and pollsters could be better spent. This year's election returns have given the business sector a fresh reason to consider what will really benefit it.

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