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.

Chief Justice Clifford W. Taylor
Chief Justice Cliff Taylor

Michigan's voters delivered a small but telling electoral shock on Nov. 4. Chief Justice Cliff Taylor, a heavy favorite, got thumped by 100,000 votes by Circuit Judge Diane Hathaway, who was nominated just 59 days before the election. Taylor raised almost five times as much money as Hathaway and enjoyed at least $1.3 million more in supportive television ads from groups like the GOP and the Michigan Chamber of Commerce. Yet he was the first high-court justice to be voted out in Michigan in 24 years. The business sector acknowledges Taylor's loss as a stinging defeat. But some of its members still see electing judges, in general, as good for their bottom line. And now they're pushing for more of it.

It's no secret that many chambers of commerce and trade associations and their foes, plaintiffs' attorneys and unions, have become the Itchy and Scratchy of judicial campaigns, willing to do whatever it takes to prevail. Since 2000, these rivals have spent millions to elect judges that they hope will rule their way, smashing funding records in at least 15 states. (As an Ohio AFL-CIO official put it: "We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators.") In the last few election cycles, businesses have outspent the other side and won more often than not. But the specter of judges chasing after money unnerves the public: Three in four Americans believe campaign cash affects courtroom decisions, according to a bipartisan poll that my organization, Justice at Stake, commissioned. The latest John Grisham thriller casts a toxic tycoon buying a court race just to win a case.

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Recently, some political operatives within the business world have been talking up a bold next step. They're taking aim at states that use merit selection to pick judges and are pressing lawmakers to scrap that system in favor of contested elections, which they believe are easier to sway, losses like Taylor's notwithstanding. Such a campaign could have big repercussions, since three dozen states use nominating commissions to pick some of their judges. These nominating commissions, typically assembled by the governor, lawmakers, and bar leaders, identify a slate of qualified candidates. After a candidate is nominated and goes on the bench, he or she must periodically face the voters in a retention election—an up-or-down approval vote with no opponent.

Merit selection dates from the progressive era, when it was embraced as an antidote to corrupt politicking by judges. Since then, business leaders have generally favored merit selection, preferring the stability and quality it can offer. Traditionally, they've been wary of being drawn into high-spending races that could undermine public confidence in the courts.

But for more militant business groups and some of their ideological allies, a decade of victories in contested court races has made merit selection and retention seem harder to sway than straight-up elections. Recently, Dan Pero, head of the American Justice Partnership, a creation of the National Association of Manufacturers, began denouncing merit selection, deriding nominating commissions as undemocratic "star chambers" bent to the will of trial attorneys. The Wall Street Journal editorial board joined in, writing this spring that "picking judges behind closed doors only takes things further from our democratic ideals."

Similarly scripted efforts have been launched to weaken or scrap merit-selection systems in Missouri, Tennessee, and Kansas. There's a pattern: First, a local Federalist Society chapter publishes a paper questioning merit selection (the national Federalist Society takes no position on the matter and has published papers for and against judicial elections). Then a poll of state voters appears from the Polling Company, run by GOP pundit Kellyanne Conway. The questions are carefully crafted to elicit hostility to merit selection (in Tennessee, questioners helpfully pointed out that the commission could include "criminal defense lawyers"). CRC Communications, which ran the 2004 Swift Boat Veterans campaign, handles PR for the anti-merit effort.

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.

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.

Bert Brandenburg is the executive director of the Justice at Stake, a nonpartisan national organization.

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