Tennessee’s Judicial Selection Commission yesterday submitted a list of three candidates it deems worthy to fill retiring Chief Justice William Barker’s seat on the state Supreme Court. How did the commissioners reach their decision? Did they weigh each applicant’s judicial temperament? Did they examine each applicant’s judicial philosophy? Did they take into account the views of Tennessee citizens who will be governed by the court’s rulings?

No one really knows, because like other states which utilize so-called “merit” selection systems, Tennessee’s panel meets in secret and is accountable to no one. Many legal scholars believe the commission is unconstitutional, since Tennessee’s Constitution clearly calls for judges to be selected by voters.

The last time around, Gov. Phil Bredesen rejected two slates of candidates as being too limited and demanded the commission submit more names before he finally settled on an appointment. Following this fiasco, Gov. Bredesen called on the commission to come out from behind closed doors and meet in public, while Lt. Gov. Ron Ramsey supported legislation to make the commission more accountable to voters.

After both reform proposals were killed, the legislature failed to reauthorize the commission, which will expire next year unless it is renewed. This raises the hope that judicial selection in Tennessee may soon be returned to the people, rather than a secret committee controlled by legal special interests.

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The Cleveland Plain Dealer came out with a strong editorial supporting judicial elections and a campaign rule that would let judicial candidates list their party affiliations in campaign ads – a move the paper called “a big plus for free speech, common sense and Ohio voters.”

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After weeks of sober, serious and secret deliberations, Florida’s judicial selection commission emerged from behind closed doors to present Governor Charlie Crist with its list of approved names to fill two state Supreme Court openings. Like other states that utilize so-called “merit” selection, the power to pick judges for the high court in Florida rests not with an elected governor accountable to the nearly 5 million Floridians who voted in the last election, but with an unelected committee controlled by lawyers that is accountable to no one.

For his part, Gov. Crist expressed frustration with the commission’s work, noting that he had “several concerns” about the list of names and would continue “looking at what my options are.” According to The St. Petersburg Times, while the commission could have recommended up to 12 candidates for the two openings, they only sent eight, severely limiting Gov. Crist’s options for shaping the direction of the court. In an editorial, the Times writes:

“The effect is to give the commission more control and the governor less.”

But that’s precisely the point of “merit” selection: taking power away from the people and their elected representatives and handing it to a small group of legal elites.

Not surprisingly, governors in other “merit” selection states – including Missouri and Tennessee – have also balked at being forced to swallow the dictates of judicial star chambers. But Florida’s list of candidates also raised the ire of the president of the state ACLU chapter, who pronounced herself “terribly disappoint[ed]” because the commission failed to nominate any women or African-American candidates.

Florida’s judicial selection commission has managed to produce a frustrated conservative governor, a disappointed liberal ACLU official, and an angry news media demanding it go back to the drawing board to come up with a more diverse list of nominees. So much for taking politics out of judicial selection.

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If you are going to engage in judicial overreaching, why not reach for it all?

The “merit-selection” movement has now entered its inevitable new phase. In a stunning rejection of more than two centuries of Constitutional advice and consent, the American Bar Association is touting a proposal that would institutionalize the role of home-state senators and that of a “bipartisan” commission, giving them equal weight to the role of the President of the United States in selecting federal judges.

In a hard-hitting editorial today The Wall Street Journal lays waste to the ABA scheme.

In its piece, The Journal quotes Bert Brandenburg, the executive director of the George Soros-supported organization, Justice At Stake:

“Judges are not politicians in robes, nor are they prizes to be won by aggressive special interests.” (For more see Gavel Grab.)

Of course this sentiment ignores the politicization of the judiciary in our time and the increasing need for public judicial accountability - which I believe is best achieved through judicial elections. Ted Frank of AEI and PointofLaw.com captured this point very well recently when he said:

“When a California Supreme Court unilaterally amends the state constitution or a Wisconsin Supreme Court announces that it will act as a super-legislature to strike down medical malpractice legislation because it disagrees with the actual legislature’s conclusions, the judiciary has ceased to act as a judicial branch, and is just another branch of government. As a first choice, I would prefer the judiciary to be a judiciary, but if it is not going to do so, then it is hard for me to see why the self-appointed philosopher-kings should not be directly answerable to the voters.”

ABA President Thomas Wells is also quoted in the WSJ editorial saying that one purpose of the ABA’s measure is to avoid “really rancorous debates” in the confirmation process. Why stop there? We could also avoid the really rancorous presidential contests that occur in this country every four years by letting a similar “bipartisan commission”—composed of all the correct people, of course—select our presidents for us.

Another way to avoid the really rancorous debates of our current era, of course, would have been for the ABA’s judicial review panel to rate judicial nominees fairly, as you would expect of a professional organization—instead of rating leading national legal scholars, like Judge Bork, as “unqualified.” But that cat has long since slipped that bag.

The Journal weighs in on the proposal for a “merit commission” composed of “lawyers and other leaders” by adding:

“But with so many modern judges bent on writing law by fiat, doctors, firemen and used car salesmen are just as qualified to opine on judicial philosophy. In fact, we’d prefer the used car salesmen.”

The ethics of marketing previously owned vehicles is not such a bad standard for ABA leaders to try live up to. After all, a few years ago such a “merit board” could easily have included John Edwards, Mel Weiss, Bill Lerach and Dickie Scruggs.

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Alicia Mundy of The Wall Street Journal has a piece on the politics of tort reform in today’s edition.

Mundy notes that judges are putting holds on major cases pending a U.S. Supreme Court decision on Wyeth v. Levine, a case to be heard on November 3. While that case is pending, Mundy describes how the pro-reform and anti-reform forces are furiously backing candidates who take opposing sides on restricting some cases to federal court, and recognizing the sovereignty of FDA and other regulatory agencies.

“It is a war,” one Houston attorney tells Mundy. Well, that part is right.

But then she reports: “Trial lawyers are expected to be heavily outspent.” Huh?

Mundy writes that the Chamber of Commerce Institute for Legal Reform intends to raise $40 million to back political candidates this year. But remember, trial lawyers have made billions of dollars from tobacco, asbestos and other settlements. This is why John Edwards can afford to live in a Dixie Versailles.

The trial lawyers’ national organization, the so-called “American Association of Justice,” is number four on OpenSecrets.org’s ranking of “Top All Time Donors” to campaigns, ahead of Goldman Sachs, Citigroup, Altria, the National Rifle Association and dozens more. Lawyers and law firms (defense and plaintiffs’ firms combined) contribute millions to candidates every year — $142 million so far in just this election cycle, 75% of that going to Democrats. Because there are so many of these trial bar tycoons, their money will be harder to track. But rest assured their contributions will exceed other efforts.

Putting together the myriad ways trial lawyers influence the law, of course, would be a hard task. Some would call it “investigative reporting.”

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John Gizzi of Human Events has a nice wrap-up piece of the political state of affairs in Michigan.

Gizzi correctly analyzes the sham Reform Michigan Government Now proposal as a power grab in the tradition of hard-left subversion, larded with enough superficial items meant to appeal to conservatives to reveal the utter cynicism of its authors.

Upholding Lincoln’s adage about the inability to fool all the people all of the time, RMGN has been condemned by Michigan Democrats and Republicans and by press around the country. So Democrats are now training their remaining ammunition on defeating Chief Justice Cliff Taylor. Here’s the fun part: The blowback from RMGN is so powerful that the Democrats can’t get anyone to run. As you’ve read here before, former Gov. James Blanchard and fellow Democrat Marietta Robinson both decided they didn’t want to run in a year in which they’d be tied to RMGN. “That leaves,” Gizzi writes, “Wayne County Circuit Judge Deborah Thomas, who raised only $28,000 in a losing bid for another Supreme Court seat in 2004.” Not satisfied with this sacrificial lamb, “Democratic party elders and union leaders” are in a “desperate search.”

For Michigan Democrats, it’s a political American Idol in which all the contestants are going to be seriously off-key.

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The New York Times reports on a study to be published in the September issue of Journal of Empirical Legal Studies that analyzes whether the parties in a lawsuit would be better off settling or going to trial. Being The Times, they lead with the plaintiffs’ angle—“most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.”

Of greater importance for our point of view is the trial outcome showed that defendants were wrong to go to trial in only 24 percent of cases. (There is, however, a big, fat, greasy fly-in-this-ointment. Plaintiffs who got it wrong shelled out an average of about $43,000. Defendants who got it wrong shelled out an average of $1.1 million.)

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For many years, Ohio was mired in one of the worst legal liability climates in the nation—rated as low as 43rd among the states. Business and jobs fled the state. During much of this decade, while the rest of the United States enjoyed robust growth and low unemployment, Ohioans felt as if they were living in an endless recession.

In an op-ed this week, Ohio State Sen. John Carey describes how legislators in Columbus finally reacted, passing measures in 2005 to lure business back into the Buckeye state. Among them were tort reform measures that moved Ohio’s legal liability climate from that 43rd place to 4th best in the nation, as rated by the venerable Pacific Research Institute in its latest report. “By reducing frivolous lawsuits,” Sen. Carey writes, “we can make Ohio a more attractive place to do business.”

And how. In 2005, there was $3.8 billion in new private investment projects planned in Ohio. Today $7 billion in new investment is planned.

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Pity the poor blogger trying to keep up with the plaintiff’s bar. Nothing you can possibly come up with can match that profession’s propensity for self-satire.

Exhibit A: WhoCanISue.com. You might think that this is something a comedian came up with in a send-up of the legal profession. Or you might think it was last week’s Saturday Night Live skit that you slept through.

No. WhoCanISue.com is, in fact, a website that will go live in September, to compete with SueEasy.com and LegalMatch.com. Consumers will list their grievances—and plaintiffs’ attorneys, who pay $1,000 to appear on the site—will estimate how good a case they have.

Richard Sharpstein, a Miami trial attorney, told Time magazine, “It encourages, if not creates, lawsuits. Our country’s courts are clogged with unnecessary and frivolous lawsuits which delay, if not obstruct, the access to courts of people that really need to get there, that have serious legal grievances.”

We are reminded that there are attorneys who do take on meritorious cases. But then they aren’t the ones who have to shell out a $1,000 to troll for business on websites like WhoCanISue.com.

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Former Wisconsin Supreme Court Justice Louis B. Butler, Jr., remains Exhibit A in the drive to protect voters’ rights in state judicial elections.

After losing an election to the high court by a whopping two-to-one margin in 2000, Mr. Butler managed to finally secure a place for himself on the bench through an appointment by Gov. Jim Doyle. When it came time for Justice Butler to face the voters again this spring, the good people of Wisconsin again exercised their judgment and threw him off the court.

Now Mr. Butler is portraying himself as a martyr for consumer rights. In a revealing piece in the Wisconsin Law Journal, Citizen Butler says the election sent a message to judges: “Do not vote against business interests.”

He went on to opine: “A powerful special interest group, WMC (Wisconsin Manufacturers & Commerce), decided that I had to go. Because I sometimes rule in favor of consumers, that was unacceptable.” Actually, it was because he ruled in favor of trial lawyers—all the time! – that voters threw him out.

Put aside the question of whether Wisconsin’s business community—its managers, workers, and pensioners—are truly a “special-interest,” or simply the backbone of Wisconsin life and economy. The reason Mr. Butler had to go was that he arrogated to himself breathtaking legislative power that broke with precedent.

• After the Wisconsin legislature passed a statutory cap on non-economic damages in medical-malpractice cases, then-Justice Butler and his activist colleagues decided in Ferdon v. Wisconsin Patients Compensation Fund that the measure was unconstitutional. In a 4 to 3 majority, the Butler majority contended that the legislature’s reasoning was wrong.

• The same Butler majority transferred the burden of proof in lead-paint cases from plaintiffs to defendants in Thomas v. Mallett. The dissent complained that defendants “can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conducted that may have occurred over 100 years ago…”

The first case is an example of a court fully supplanting a democratically elected legislature. The second case is an example of a court cravenly serving its trial bar supporters.

Thanks to the voters, Mr. Butler is free to be the activist he wants to be—as a private citizen!

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