Gavel Grab

Give the Wall Street Journal points for persistence, if not consistency.

After firing away last week at the ABA’s call for advisory federal court nominees (blurring it with merit selection, a very different entity), the Journal continued its assault Saturday with a new editorial criticizing merit selection systems.

The editorial dwelled on the shortcomings of a slate of three nominees sent to Missouri Gov. Matt Blunt by a judicial nominating panel, to fill a vacancy in the state Supreme Court. It especially singled out Appellate Judge Lisa White Hardwick, naming two other candidates who were clearly superior.

The editorial had a strange sense of de ja vu. Barely a year ago, when Blunt was sent a list of nominees for the last Supreme Court opening, an August 2007 Journal editorial also railed against the three chosen candidates, and also identified more qualified candidates who should have been considered. One of those spurned candidates was … Lisa White Hardwick.

As the Journal’s own mixed reviews of Hardwick show, choosing a judge is a subjective business. If we disagree with ourselves, we surely can disagree with others.  

As a nonpartisan campaign with 50 national partners, Justice at Stake takes no position on the best way to select judges. We advocate many reforms tailored to states with election, such as public financing for judges and recusal standards for judges who have received major campaign contributions. Unlike the Journal, Justice at Stake has never advocated the selection of particular judges, or of any particular philosophical stripe.

What’s important is that we support courts that are fair and impartial. Whether judges face partisan elections or retention elections,   they should not appear, when hearing cases of law, to favor a narrow group of campaign supporters.

In its many variations, merit selection is one tool that has helped achieve that goal in many states. As a Justice at Stake poll showed last December, voters in Missouri have a high degree of confidence in their court system and judiciary.

According to other polls, three voters in four believe that judges are likely to give preferential treatment to campaign donors. That’s an alarming indicator of how free-spending judicial elections can erode public trust in the courts.

As the Journal continues its critique of merit selection, it should perhaps acknowledge the downsides of its own position. If the public has concluded that big-money politics can twist justice, is that a belief that the Journal would like to see become more common?

 This is a major public problem on which the Journal has been, and remains, stubbornly silent. And it is not a liberal or conservative issue, either. As no less a conservative than Theodore Olsen recently remarked:

“The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”

To see an earlier Gavel Grab discussion of recent Journal editorials, click here.

Tags: American Bar Association, Judicial Nominating Commissions, Justice at Stake, Merit Selection, Wall Street Journal