Recently, the ultra-left-wing magazine the American Prospect released a “special report” called “Justice for Sale” on what it considers “threats” to America’s state courts. But rather than examining the true threats to our judiciary - activist judges, tort-abusing trial lawyers and the wholesale invention of new “rights” our nation’s Founders never imagined - the report offers a road map of the left’s campaign to seize control of our courts, if you recognize the signposts.
The first clue comes on the report’s inside cover, where we learn that the project was financed through the “generous support” of the Open Society Foundations, the political arm of liberal moneybags George Soros. Last year, the organization I lead, the American Justice Partnership, released a study finding that Open Society has spent more than $45 million during the past decade to fundamentally shift the direction of America’s courts.
According to our research, the American Prospect itself raked in approximately $1.3 million over the past decade or so from Open Society over and above whatever it got paid to produce the latest special report. The authors of the report also recognize the “valuable input” of Lambda Legal and its Fair Courts Project. Both Lambda Legal generally and its Fair Courts Project specifically are Open Society beneficiaries to the tune of more than $1 million between 2003 and 2009. In fact, in 2009 alone, Soros foundations approved $380,000 to support the Fair Courts Project. The other acknowledged sponsor, a group called Demos and its predecessor, the National Voting Rights Institute, have received more than $3 million in Open Society funding over the past decade.
One of the report’s biggest complaints is that conservative groups such as the American Justice Partnership and the U.S. Chamber of Commerce have been too effective in supporting rule-of-law judges in judicial elections. To buttress this claim, the report quotes four purportedly nonpartisan sources but never mentions that all of them are bankrolled by Open Society, including Justice at Stake (more than $3.1 million over the past decade), the Brennan Center for Justice ($12.3 million), the National Institute for Money in State Politics ($2.3 million) and the Wisconsin Democracy Campaign ($150,000).
For those readers without a calculator handy, that adds up to about $23 million in Open Society money connected in some way to the American Prospect’s special report.
As conservatives have had more success against the left in judicial elections, one of the main thrusts of the Open Society campaign has been to replace the election of judges with the so-called “merit” selection system. Under merit selection, the power to choose judges is taken away from the people and handed over to a small committee typically dominated by state bar associations, trial lawyers and other legal special interests.
As a result, even conservative governors can be forced to pick from a slate of left-wing judges. In Iowa, for example, merit selection produced a Supreme Court that unanimously overturned the legislature’s Defense of Marriage Act and ordered the state to sanction homosexual marriage. Needless to say, merit selection is one of the key “reforms” identified in the special report, parroting the Open Society line.
Fortunately, the merit selection crowd has not been able to sideline the people totally. In Iowa, as in other merit selection states, judges face a retention election every eight years or so, in which voters can decide whether they want to retain a specific justice. Last year, in an unprecedented move, Iowans rose up and dumped all three justices running for retention, all of whom had voted to block the Defense of Marriage Act. In response, the Open Society-bankrolled campaign argues that disagreement over a controversial decision should not be grounds for the people to dismiss a justice - as if exceeding his constitutional authority is not a sufficient reason for voters to replace a judge.
The American Prospect teaches us something very useful about the political strategy the left has adopted to shape America’s courts. Rather than arguing openly for the kind of liberal judges it prefers, the left is spending tens of millions of dollars in an attempt to remove ordinary people and their elected representatives from the process of choosing judges. Concern about special-interest influence, hand-wringing about politicized judicial races and proposals to adopt merit selection are all ruses to create activist courts the people would never choose on their own.
Dan Pero is president of American Justice Partnership.