The Myth of Money-free Judicial “Merit Selection & Retention”

Across the country (not just in Colorado), voters are being treated to a barrage of propaganda (led by the New York Times and the George Soros-funded ‘Justice At Stake Campaign’) promoting the “Merit Selection and Retention” system (the so-called ‘Missouri Plan’) as a way to keep the judicial branch free of the corrupting influence of moneyed special-interest groups with a stake in keeping (or removing) incumbent judges.  Although the “Merit Selection and Retention” system does offer some advantages (and, if reformed with greater transparency and public accountability, is probably worth preserving), the notion that the system has kept big-money special interests from dominating judicial politics behind the scenes is a myth.

The special-interest money and influence is there; it’s just not out in the open.

The following article was written for (and originally published in) Liberty Ink Journal magazine, appearing in the October edition (“The War on Prosperity”), page 6).

The Myth of Money-free “Merit Selection and Retention”

How Big-Money Special Interests Dominate Judicial Politics Behind the Scenes

A number of years ago, Colorado embarked upon an experiment in government that was touted as a great reform. Attempting to “take the judges out of politics” our state did away with direct, contested elections of judges in favor of the “merit selection and retention” process pioneered by the State of Missouri (the “Missouri Plan”), under which judges and supreme court justices are nominated by commissions, appointed by the governor, and only subjected to checks and balances by the citizens of the state in periodic “retention” elections (posed as a simple yes/no question on the ballot).  For Colorado Supreme Court justices, the opportunity to hold them accountable comes around only once every TEN years, posed as a ballot question:

“Should Justice [name] be retained in office?” (Yes/NO)

In theory, the system looked like a good idea; after all, selecting judges and supreme court justices on the basis of “merit” instead of “ability to win an election” – putting professional qualifications ahead of political ones – appeals to our common desire for fair play and “equal justice before the law” and removes some of the most direct and obvious temptations for corruption via “quid pro quo” campaign contributions.

In practice, however, the “Missouri Plan” systems in place in several states seem to have merely shifted the potential for undue influence to well-connected interest groups (particularly the “in-crowd” of bar associations, other attorney groups, lobbyists, and others directly involved with the courts) operating largely outside of public scrutiny.  Lack of transparency – in both the up-front selection and back-end review & retention processes – has actually led to a complete and utter lack of accountability for Colorado Supreme Court justices in Colorado.

A recent Wall Street Journal article (“Voters vs. George Soros – Taking judicial selection away from the lawyers guild“) highlighted some of the concerns with the so-called “merit selection and retention process” under the “Missouri Plan” used by Colorado:

Designed to take politics out of the courtroom, the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations. The effect has been to give a single profession control over a third of state government, with little political accountability.

That single profession – the “lawyers guild”, as the WSJ article put it – is clinging tightly to control of the judicial selection and evaluation processes, and fighting independent efforts to increase transparency and accountability to the public.  And they’re spending LOTS of money…

The Colorado Bar Association (COBAR) has already spent over $50,000 this month (by their own admission) joining three other legal establishment special-interest groups (likely spending a similar amount, although the exact figures have not been made publicly available) in mounting an “education” campaign (electioneering without using the “magic words” of “vote yes” or “vote NO”) to prop up incumbent judges and justices.  Combined, these special interests are spending hundreds of thousands of dollars in television, radio, and print ads providing “nonpartisan information about the performance of judges seeking retention” that, curiously, ALL supports a “retain” vote.

Another effort, sponsored by prominent Democrat attorney Mark Grueskin and other partisan attorneys (the “Colorado Judiciary Project”) is also spending large amounts (again, because this group formed as a “social welfare organization” their expenditures are NOT publicly available) supporting the judicial incumbents before which they argue cases.  Conflict of interest?  Nah!

Ironically, these legal special-interest efforts come on top of hundreds of thousands of taxpayer dollars used to produce and distribute the one-sided and shallow “evaluations” perpetrated by the (taxpayer-funded) commissions on judicial performance evaluation.

Executive Director Jane Howell of the Colorado Office of Judicial Performance Evaluation concedes that the commissions have recommended to “retain” Colorado Supreme Court justices EVERY TIME (100%) they have been “evaluated” over the decades-long history of the process.

Nationwide, the George Soros-funded “Justice At Stake Campaign” is spending literally MILLIONS to convince voters to give up their rights to hold the judicial branch accountable (characterizing ANY critiques of judicial performance as “attacks on judges” and “undermining judicial independence”).  Ironically (again), this group recently issued a report decrying the trend towards increased spending in judicial elections (including retention elections) this last decade.

Other national legal special-interest groups have joined in the chorus against efforts to hold both elected and appointed judicial incumbents accountable.  The National Law Journal has recently published both guest commentary articles (“Is Justice for Sale?“) and in-house “reporting” pieces (“Battlegrounds“) opposing public transparency and voter accountability for judicial incumbents.

The New York Times (that bastion of constitutionality) also recently (9/10) chimed in with an editorial (“Fair Courts at Risk” – parroting the “Justice At Stake Campaign” press release) bemoaning “big-money” in judicial elections across the country.

The reality is, however, that “big-money special interests” are already well-established in their control of the judicial “merit selection and retention” process in Colorado and other states – only recently is that information coming to light, and grassroots groups are fighting back against the dominance of the “lawyers guild” in controlling an increasingly powerful one-third of our state and national government.

Sunshine is the best disinfectant – transparency and accountability in our judicial branch (and information about the role of big-money legal establishment special-interest groups in controlling that branch) is LONG overdue.

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Matt Arnold (info@clearthebenchcolorado.org) is the founder and executive director of Clear The Bench Colorado, an organization working to restore accountability to the judicial branch (particularly the state Supreme Court) in Colorado.  For more information, visit http://www.clearthebenchcolorado.org/

The legal establishment and the political ruling class don’t want you to get informed; they prefer to keep you in the dark, or failing that, convince you NOT to exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and soon-to-be-minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions – and vote “NO” on giving these unjust justices another 10-year term!