Guest column: Elites are trying to wrest control of courts from the voters

By Dan Pero/American Justice Partnership

The recent recommendations of Michigan’s Judicial Selection Task Force have been widely hailed by legal elites, prominent newspaper editorial boards and others. Yet the proposed changes would do little to reduce the influence of money or politics in the judicial selection process, while seriously weakening the power of ordinary voters when it comes to deciding who will sit on the bench. 

The best starting point for evaluating the Task Force’s proposals is its funding and composition. The dollars came from the Michigan State Bar Foundation. Of the 24 full Task Force members, 18 are attorneys, including three former presidents of the State Bar and two former heads of the Michigan Trial Lawyers Association. Of the non-attorney members, one finds a former Michigan Democratic Party chair, a former Democratic candidate for governor, and a former president of the MEA.  

In short, this was not an independent, nonpartisan committee representing a broad cross-section of Michigan. This was a group comprised primarily of elite lawyers and Democratic Party activists, many of whom have long sought to shift the direction of the court in a more liberal direction than the one preferred by voters. 

One major problem with democratic elections, according to the Task Force, is that ordinary voters lack the “knowledge” to undertake the “basic task of determining what qualities are necessary to a successful Supreme Court justice.” “Uninformed” voters lack “adequate time or training to study judicial candidates’ records,” which, the Task Force believes, leaves them susceptible to “noxious, distracting and misleading” ads and turns democratic elections into a “farce.”

Even if you grant the Task Force’s premise that voters are too uneducated to select Supreme Court justices, which I don’t, it’s difficult to see how its many proposed reforms will address the problem.

Shifting judicial nominations from party conventions to “open, nonpartisan primaries” for example, will do little to curtail campaign spending and tough television ads. In fact, it might actually increase both. 

Creating a do-good Campaign Oversight Committee to “monitor” campaign ads and “help limit debate to those issues” the committee deems should be relevant to voters is also likely to have little impact on the tone and tenor of judicial campaigns. 

Which brings us to the task force’s real plan and true purpose -- namely to serve as a stalking horse for the abolishment of democratic judicial elections and the adoption of a new, feel-good judicial selection system known by its supporters as “merit” selection. 

Under this scheme, which requires amending Michigan’s Constitution, a new commission would solicit applications from prospective jurists and review their qualifications, with no input from voters. Afterwards, the commission would produce a list of approved nominees from which the governor must choose. 

“Merit” selection originated in Missouri as a way to break the notorious Pendergast political machine’s grip over the selection of judges. Whatever its intentions, this system has turned judicial selection into a virtual subsidiary of the Missouri trial bar. 

The problem has grown so bad that a few months back, the Missouri Senate voted to rein in the power of legal special interest groups and make the system more accountable.  Other states that have experimented with this system, including Arizona and Tennessee, are considering legislative plans to scrap it altogether. 

Democratic judicial elections are certainly not perfect. They can be messy, expensive and negative. But, unlike “merit” selection, they have the virtue of putting the people in charge, rather than an unelected, unaccountable commission. And isn’t that what democracy is all about?

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Jeff Salisbury
Thu, 07/12/2012 - 9:06am
The best starting point for evaluating the viewpoint of Mr. Pero and his "American Justice Partnership" is its funding and composition. According to - "The American Justice Partnership states it is a national organization dedicated to promoting free enterprise and winning legal reform in the states." AJP is an affiliate of the National Association of Manufacturers (John M. Engler: President and Chief Executive Officer). The AJP is a conservative legal organization based not in Maine, but in Michigan. On their website, the group states they are fighting against "the scheming George Soros money machine," which is "trying to sabotage your right to vote," a claim apparently made without a hint of irony. Though the AJP doesn't disclose where its funding comes from, the Bangor Daily News notes that it has partnered with the American Legislative Exchange Council (ALEC) in the past, a group that has been instrumental in the proliferation of voter ID laws across the country." --- of course Mr. Pero is entitled to his opinion.
Thu, 07/12/2012 - 2:22pm
Thank you for well-researched commentary. Conservative charges of a liberal court and media is just another way the real conservative elites can continue to move America to a more fascist country rather than a more democratic one. The Patriot Act and CISPA are readily passed by anti-government Tea Party representatives that are nothing more than ideologue pawns.
Nick Glauch
Thu, 07/12/2012 - 10:41am
"It will be equally forgotten... that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people." -Alexander Hamilton, 1787
David Waymire
Thu, 07/12/2012 - 11:25am
Yes. former Supreme Court Justice James Ryan, co-chair of the commission, is today considered a "liberal" by the new Republican Party, the one in which Ronald Reagan would be considered a socialist. Ryan, the "liberal" was appointed to the court of appeals by "socialist" Reagan, where he served for 15 years. with the proposal, but let's not disparage a strong conservative like Judge Ryan just because he views this issue differently, and believes that integrity requires judges who must climb on campaign buses to keep their jobs.
Thu, 07/12/2012 - 12:28pm
"Of the non-attorney members, one finds...a former Democratic candidate for governor..." Oops, he forgot that one also finds a former Republican candidate for Governor who was also a former Senate Republican Leader and a Republican Member of Congress, John (Joe) Schwartz. I wonder how he missed that. Ya don't think it was on purpose, do you?
Rich Robinson
Thu, 07/12/2012 - 1:11pm
While claiming, incorrectly, to know the real agenda and purpose of the task force, Mr. Pero has managed to ignore its first recommendation: A call for full disclosure of the sources behind all spending in Supreme Court campaigns. As he well knows, undisclosed contributors to the the political parties and the Michigan Chamber of Commerce have provided the funds for more than $20 million of Supreme Court "issue" advertising since 2000. The sponsors of these ads define the candidates' suitability, or unsuitability, for office, carefully avoid reference to voting and report nothing. These anonymous broadcast verbal assaults are the campaign equivalent of a drive-by shooting. Mr. Pero may consider them a celebration of the First Amendment but the task force and any focus group you can assemble recognize them as campaign expenditures that should be transparent as to their source. In Part IV of the Citizens United decision, the Supreme Court of the United States voted 8-1 that it is constitutionally permissible to require disclosure of donors behind such spending. The tragic reality is that contemporary campaign financing is nothing so much as money laundering on a massive scale. That is a corrupt foundation for the selection of public officials and it needs to be fixed. The task force recognized it. Why doesn't Dan Pero?
Michael Boersma
Thu, 07/12/2012 - 1:15pm
As Shakespeare wrote: "The first thing we do is kill all the lawyers". Mr. Pero believes this quote. He also professes a startling naivete about what occurs at a state party convention where candidates for the Michigan Supreme Court are chosen. Ordinary people don't choose candidates for the Michigan Supreme Court. Rather highly partisan delegates choose partisan candidates based on the agenda that their party has (either to promote business interests, personal responsibility and toughness on crime or to promote the interests of individuals, social welfare and and a limitation of the rights of law enforcement). Potential candidates who don't reflect the agenda of a party are not on the ballot for election to the Michigan Supreme Court. If you live in Mr. Pero's world of unicorns, fairy dust, dead lawyers and impartial Supreme Court Justices elected on a partisan ticket, then by all means reject the proposal of the Task Force. If you live in the real world of partisan Supreme Court Justices, then you may wish to examine the proposals of the Task Force.
Fri, 07/13/2012 - 11:45am
Mr. Pero should take two aspirin, take off his ideological glasses and re-read the task force report. The consensus of a balanced and bipartisan group respected public leaders is that Michigan should abandon the contradictory legislative scheme that state supreme court candidates seek a partisan nomination (except in the case of incumbents who choose to self-nominate) and then run and, if elected, act as though they are nonpartisan. Rather transferring power to some non-defined “elite”, this overdue reform would in effect reinforces the state electorate’ s role in assuring a balanced group of candidates for the state’s highest court.