WSJ Editorial Board Wrong, Again, on Judicial Selection

April 5, 2013

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.

Such scandals are emblematic of judicial elections in the post-Citizens United world, where judges must raise huge sums of money to run for office. Justice at Stake, a national partnership working for fair and impartial courts, has done tremendous work in demonstrating the effect of money in judicial elections nationwide. According to its data, money spent on state Supreme Court elections alone totaled over 200 million dollars in the last decade, more than double what was spent in the 90’s. The tidal wave of cash is such that it’s hard to believe that special interests are doing anything but attempting to buy favorable treatment in the courtroom. Retired Supreme Court Justice Sandra Day O’Connor, a fierce advocate of judicial independence, remarked that “A saint would be hard-pressed to disregard the fact that one litigant gave them a huge donation while the other gave nothing.”

The Journal might be right in that there’s probably no perfect method for choosing judges, but judicial elections are arguably the worst way to get the public involved in the judicial selection process. Elections shift power entirely to big-time political donors who can make or break a judicial run, especially considering the relatively low amounts of money spent in some of these races. While the Missouri plan might not be perfect, at least judges appointed under it aren’t worrying about offending a campaign contributor when deciding a case or how they’re going to finance their reelection campaigns. 

[image via Beverly & Pack]