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Home > Blog > All > The Wall Street Journal

The Wall Street Journal

  • April 5, 2013

    WSJ Editorial Board Wrong, Again, on Judicial Selection

    by E. Sebastian Arduengo

    Leave it to The Wall Street Journal’s editorial board to attack what may be the most rational approach in this country for selecting judges in favor of an approach that leaves the judiciary vulnerable to the same kind of unspoken quid pro quo influence that plagues the political branches of government.

    Missouri has long had one of the one of the best non-partisan judicial appointment plans in the country. Under the plan, which has since been adopted at least partially by 34 states, a non-partisan commission (usually with close ties to the state bar) reviews candidates for a judicial vacancy, and produces a list of people from which the governor can make an appointment. If the governor doesn’t make an appointment, the selection committee can put a judge on the bench itself. The only popular “check” on the process is a retention election that is typically held once the judge has completed one year of service.

    The main criticism of this method of selecting judges is that it gives state bar associations, and plaintiff’s lawyers in particular, too much power in the nominations process, while voters effectively have no input on the people who will take the bench. This argument has been the clarion call of the Journal, and it was brought up again in this recent editorial, with the outrageous claim that Pennsylvania’s recent moves to become the latest state to adopt the Missouri Plan amounted to “the political class … using a political scandal to grab more power.”

    Predictably, the Journal glossed over the nature of the scandal prompting Pennsylvania to consider switching from its current system of elections for judges – one of the biggest in the state’s history. It resulted in the resignation of state Supreme Court Justice Joan Orie Melvin, after she was found guilty of using state employees to run her reelection campaign. One of her sisters, a former state Senator, is already serving prison time after pleading guilty to using state employees to work on her own and Melvin’s campaigns, then forging documents to cover it up.

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    Tags:
    Judicial campaigns and elections, Judicial independence, Federal judicial selection, Campaign Finance, Justice at Stake, Merit selection, Missouri, Pennsylvania, The Wall Street Journal
  • August 1, 2012

    The Wobbly Legal Arguments Against Dodd-Frank

    Guest Post

    By Kent Greenfield. Greenfield is a Professor of Law, and Law Fund Research Scholar at Boston College Law School.

    Before the end of the latest SCOTUS term, flush with the excitement of the right’s anticipated victory in the ACA case, a small bank in Texas and a few additional plaintiffs sued to contest the constitutionality of the Consumer Financial Protection Bureau (CFPB) and the Financial Stability Oversight Council (FSOB), two new agencies created by the Dodd-Frank legislation in 2010. 

    Few would have noticed except that the main lawyer for the plaintiffs is C. Boyden Gray, the White House counsel for George H.W. Bush. The Wall Street Journal printed an op-ed the day they filed suit, and several other right-leaning media outlets gave it mention. One commenter on the WSJ page said the lawsuit is more important for the future of the country than the presidential election.

    If the lawsuit were to be victorious, it would disembowel the most important innovations of the Dodd-Frank legislation, which, even with its numerous flaws, was an important legislative victory during Obama’s first term. [image of president signing legislation in summer 2010] 

    Should progressives worry? 

    I read through the complaint, and I don’t think we should. 

    If you separate out all the sturm und drang, the main focus of the constitutional claim is that Dodd-Frank created independent agencies that have too much discretion to regulate, especially using post-hoc adjudication. While the arguments against such independence, discretion, and post-hoc adjudication could occupy several hours of discussion in an introductory constitutional law class, they are hardly questions of first impression in the courts. On the contrary, the questions of whether administrative agencies (1) may be insulated from political control by the president, (2) may define operative regulatory terms, and (3) use adjudication to make law have been answered in the affirmative for decades. 

    So this lawsuit is not like the suits brought against the ACA that arguably raised new arguments about the scope of the commerce clause (action versus inaction, broccoli, and all that). This is a lawsuit wanting to re-litigate decades of settled law. 

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    Tags:
    Corporate governance, Financial regulation, Other courts, Constitutional Interpretation and Change, C. Boyden Gray, Dodd-Frank, Guest Post, Kent Greenfield, non-delegation doctrine, The Wall Street Journal
  • April 18, 2012

    Pusher of ‘Stand Your Ground’ Law Reeling from Attention, and Loss of Corporate Backers

    by Jeremy Leaming

    The public interest groups fighting to temper the influence of the well-funded rightist outfit that helped write Florida’s so-called Stand Your Ground law, and lobby other states to enact similar measures, are not easing their efforts to encourage corporate America to rethink its support of the group.

    After ALEC, the American Legislative Exchange Council, announced that it was shuttering its dubiously dubbed “Public Safety and Elections” task force, which pushed the Stand Your Ground laws and other measures to suppress voting, groups, such as ColorOfChange denounced the move as a desperate effort to stop corporate sponsors from fleeing.

    “ALEC’s latest statement is nothing more than a PR stunt aimed at diverting attention from its agenda, which has done serious damage to our communities,” said ColorOfChange Executive Director Rashad Robinson.

    In announcing its move, ALEC said in a press release that it was redoubling its “efforts on the economic front, a priority that has been the hallmark of our organization for decades,” which is apparently all about helping corporations reap greater profits.

    The tragic death of the Florida youngster Trayvon Martin (pictured) at the hands of a so-called neighborhood watchman, sparked national outrage and drew attention to the Stand Your Ground Laws, which a New York Times columnist wrote is “tempting to dismiss” as “the work of ignorant yahoos.” (For instance one could image a yahoo, such as the lame, one-hit-wonder, washed-out “rocker,” Ted Nugent, as itching for this type of law, which essentially gives legal protection to those who kill others outside their homes, if they claim they did so in self-defense.)

    But, the Stand Your Ground law was strongly backed by the NRA, which the yahoo Nugent is a member, and essentially the product of ALEC, which has enjoyed years of corporate backing.

    After Martin’s death, ColorOfChange and other public interest groups launched a campaign to educate corporations about ALEC’s real agenda.

    The campaign has had success, prompting 11 corporations to cut its ties to ALEC, and irking the right-wing editorial board of The Wall Street Journal, which whined about “the bullying of big business.”

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    Tags:
    Civil rights, Other courts, Criminal Justice, ALEC, CMD, ColorOfChange, Florida, stand your ground, Ted Nugent, The Center for Media and Democracy, The Wall Street Journal, Trayvon Martin