During the past decade, a lavishly funded, highly coordinated campaign has been under way to shift America’s judiciary fundamentally to the left by keeping conservative judges off state courts. This campaign is being orchestrated and funded by the Open Society Institute (OSI), the political arm of billionaire hedge-fund manager George Soros. According to a study released this week by the American Justice Partnership, OSI has spent at least $45.4 million to promote the so-called merit selection system and reduce the influence of citizens and their elected representatives when it comes to picking judges.
Approximately 95 percent of civil disputes in the United States wind up in state courts, giving the judges who hear these cases enormous influence over our lives, property and business affairs. The authors of our state constitutions recognized the need for a check on this power, which is why 39 states hold some form of judicial elections. The goal was to balance the virtues of independence and accountability in the judiciary by requiring judges to assume office by the consent of the people.
Under “merit” selection, however, the power to select judges is transferred from the people to a small, unelected, unaccountable commission made up primarily of legal elites - and is often stacked with representatives of powerful special-interest groups such as state trial lawyers’ associations. The plan is sold as a way to keep politics out of America’s courtrooms, but it merely shifts politics to the backrooms where merit selection committees meet outside of public view to determine who will control our courts.
The best way to understand “merit” selection is to consider what would happen if the federal system for selecting judges was modified by requiring the president to choose a Supreme Court nominee served up by the American Trial Lawyers Association and the American Bar Association. Imagine a committee made up of seven people - three lawyers from the American Bar Association, three lawyers from the American Trial Lawyers Association, and Ed Feulner of the Heritage Foundation thrown in to “prove” that this committee is “nonpartisan.”
Does anyone seriously believe there’s a chance that committee would give us a Justice Antonin Scalia, or Clarence Thomas, or Samuel A. Alito Jr. or a Chief Justice John G. Roberts Jr. - or any nominee whose judicial philosophy is to follow strictly the Constitution and the law? That, in a nutshell, is what “merit” selection has become in our states - a rigged game that puts legal special interests in charge of choosing our state judges.
OSI’s $45 million (and counting) judiciary campaign is run by another Soros-grantee organization, called Justice at Stake. Other groups supping at the Soros trough include the People for the American Way Foundation ($2.1 million in funding), the American Bar Association Fund for Justice and Education ($2.2 million) and the League of Women Voters Education Fund ($1.7 million). Even Planned Parenthood gets in on the act.
What type of judges can we expect under merit selection if and when the OSI network succeeds in abolishing democratic judicial elections? A good example can be found in Wisconsin.
In 2004, Democratic Gov. James E. Doyle appointed Louis Butler to fill a vacancy on the state Supreme Court. According to Charles Sykes in a report for the Wisconsin Policy Research Institute, Justice Butler was appointed in “open defiance” of voters who had rejected him by a 2-1 margin when he had run for election four years earlier.
As soon as Justice Butler joined the bench, he immediately shifted the direction of the court sharply to the left. Before long, the new activist majority in Wisconsin began inventing new legal theories out of thin air that exposed businesses to new litigation threats and destroyed the medical malpractice reforms painstakingly enacted by the state legislature. Fortunately, Justice Butler had to go before the people one more time to secure his spot on the seat and was defeated in his election campaign.
Or consider Missouri, the birthplace of “merit” selection. In the Show Me State, three of the seven members of the Appellate Judicial Nominating Commission have ties to the Missouri Association of Trial Lawyers. Perhaps that’s why 20 of the last 21 nominees to the state Supreme Court have been supporters or contributors to the Democratic Party or members of the state’s trial bar lobby. When Gov. Matt Blunt tried to appoint a justice who would practice judicial restraint - as he had specifically pledged to Missouri voters - he was blocked by the merit selection commission.
The political intent behind Justice at Stake, the Open Society Institute and the entire $45.4 million judiciary campaign is readily apparent. Because the far left has been unsuccessful at persuading the public to elect judges who share its partisan ideological views, it is determined to end the public’s role in selecting judges. For proponents of judicial restraint, the question comes down to this: Are we going to trust the good intentions of the trial bar and other legal elites? Or are we going to put our faith in the wisdom and judgment of the people?
Dan Pero is president of the American Justice Partnership, a national organization dedicated to promoting judicial accountability and legal reform at the state level.