370. Good riddance, Chief Justice Taylor

From a fatuous Slate article I learned that Michigans Chief Justice Clifford Taylor was ousted by the voters. Taylor was a contemptibly bad judge, already featured twice in these hallowed pixels. (See post 216 and post 144.) Heres what the Trial Lawyers had to say about him. It includes an amusing/appalling story about thuggish backstage maneuvering, as described in more detail by fellow justice Elizabeth Weaver.

Weaver has been highly critical of Taylor and he retaliated in public with sexist derision, characterizing her detailed complaints as “sort of strange rantings … of an unhappy human being” and the venting of “a sad and angry woman.” (You know how emotional women get.) In a draft opinion circulated among his fellow justices he suggested she launch a hunger strike “as it seemed to have the potential for everyone to be a winner.” (Speaking of sad, Above the Law swallowed the Chief Justices poison.)

The papers call it a “feud” but in every instance thats come to my attention, Weaver was clearly in the right. It wasnt even arguable, except in the sense that everythings arguable to a lawyer who wants something for him- or herself. Its incredible that the Michigan newspapers dont see where their own interests lie – in governmental openness. (If this isnt enough for you, heres Justice Weavers own website.)

But to return to the Slate article, which used Taylors well-earned, thumping defeat as the take-off point for complaining about democracy and openness in government. What makes the article, by the head of an anti-democracy and anti-transparency organization, particularly “delusive; unreal” isnt just its premise that “the business sector” is unable to perceive its own best interests, or even its see-through pretense of offering disinterested and helpful advice.

No, its that while accurately summarizing the corrosive effect of money in judicial races, it fails to consider why people are prepared to pour so much money into campaigns that attracted no interest at all just a few years ago.  It reports that a union official supposedly said, “We figured out a long time ago that its easier to elect seven judges than to elect 132 legislators,” without drawing the logical conclusion: the official was saying that one was as good as the other.  The seven justices are now doing things that not so long ago were done by 132 legislators.

People who run for office with an “ethical” commitment to not informing voters about what they plan to do with the power entrusted to them (see pp. 11-12 of this handbook for New York judges) now routinely substitute their policy views for those of legislators who laid out their programs, or at least their slogans, in expensive campaigns.  The word for that is “de-democratization.”

So whats the alternative to judicial elections?  “Merit selection,” of course, means appointment by backroom politics. It means sale of judicial appointments.  (See post 229.)  In New Mexico (state motto: “Because thats how weve always done it”), weve cleverly managed to combine the worst aspects of both systems, and a good 85% of the time the scuttlebutt among lawyers accurately predicts who will win the “merit selection” competition for an open judgeship. 

Thats not because were a particularly clairvoyant lot, but because we belong to a relatively small bar.  To calculate in advance whos going to be appointed you first have to suppress your wistful hope that this time it might be different.  Instead, you just need to glance at the list of people applying, then look up political contributions on Followthemoney.org and keep your ears open to learn whos been seen palling around with the governor or his big supporters, and youll be able to guess with remarkable accuracy who will be appointed.

If the prediction is a little more difficult in other states, its only because you have more members of your bar, making it harder to get a handle on the relationships.

Money and connections – thats what “merit selection” means. Ive heard the general concept defended on the ground that it weeds out the absolutely incompetent, the complete morons, but thats not even entirely true on the federal level, where the Senators and White House judge-pickers are under a degree of scrutiny.  Its certainly not true in any system that doesnt receive sustained media attention.

In short, “merit selection” means the non-democratic appointment of people to make anti-democratic policy decisions.

Lawyers like merit selection for the same reason they like the concentration of power in judges hands: the goo-goo types enjoy the delusion that they can exert some influence over the final result through the application of sufficient earnestness and commitment to the process. 

The realists know they can get what they want from enlightened despots without all the inefficient muss and fuss of democratic self-government.  Thats why they make the contributions. 

Big contributions arent the cause of the corruption.  Theyre a symptom.

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