Gavel Grab

It’s not the first time, but today a Wall Street Journal editorial based its case against merit selection on two falsehoods.

First, it was wrong in characterizing who supports and opposes nonpartisan appointment of judges, who then must face the voters through regular retention elections.

Merit selection is simply not a left-right issue, though some want it to be. It has support from members of both parties.   Members of the national Federalist Society have weighed in on both sides.   Plenty of conservatives and liberals support and oppose merit selection.

Surveys also show that merit selection enjoys broad support within the business community.  According to a 2007 Zogby poll, 71 percent of business executives support merit selection, because it promotes quality and stability on the bench. Many executives also are tired of being asked to pony up the money for electing judges, and they are keenly aware that elections can install pro-plaintiffs judges just as easily as they can remove them.

More evidence of the canard about unified business opposition to merit can be read in this pro-merit blog article by Walter Olson, who has been dubbed the “king of tort reform,” and this report by the free-market Show-Me Institute, which says that merit is the best system for business. 

Indeed, in Greene County, Missouri, (see previous item), a leading spokesman for an effort to replace competitive elections with an appointment/retention election system is the president of the local Chamber of Commerce. 

The second falsehood is the oft-repeated (but never documented) accusation that merit is being “pushed hard” by Justice at Stake and other reform groups.  For the record, Justice at Stake, which is a nonpartisan 50-member partnership, does not prefer one method of judicial selection over another.  We have partners and board members who are pro- and anti-merit selection.  Unlike our critics, our ranks contain Republicans and Democrats, conservatives and liberals, and defense and plaintiffs attorneys.

Beyond the pedestrian falsehoods, we couldn’t help but appreciate the deeper irony:  over five anxious paragraphs, the Journal lays out attempts by trial lawyers to invest money into justices of their choice to reverse years of elections won by groups seeking to limit lawsuit awards.

We welcome their concern.  If the Journal believes that justices whose campaigns are funded by trial lawyers will be partial to trial lawyers once elected, perhaps they’ll be more inclined to understand the core concern of most Americans about no-holds-barred judicial elections.

According to a Justice at Stake and other surveys, three-quarters of all Americans believe that campaign contributions could affect courtroom decisions. That’s an unhealthy, and preventable, cost. Public trust in the courts is essential to our democracy. Any of a wide array of reforms to preserve that trust is worth considering.