Writing for The New Yorker a few days ago, in a piece titled “Judges for Sale,” Jeffrey Toobin complained about the “the grotesque spectacles that pass for judicial elections in states like Ohio, Michigan, Alabama, and (of course) Texas.” Toobin’s piece was inspired by an initiative just launched by the Center for American Progress (CAP). As part of that initiative, CAP published two papers. The first, “The Conservative Takeover of State Judiciaries,” focuses on ballot measures and legislative efforts to weaken or abolish the Missouri Plan. The second, “Big Business Taking over State Supreme Courts,” focuses on money in judicial elections. I guess the papers are supposed to convince readers that the U.S. Chamber of Commerce is destroying the universe.
You won’t be surprised that I disagreed with almost everything the various authors had to say. But what might surprise you is that this major public-policy organization has published two papers with an enormous number of glaring factual errors, and that Jeff Toobin would simply regurgitate at least one of them. After noticing the first several factual errors, I decided to take a closer look, for the purpose of fact-checking, and realized that the papers are so full of mistakes that no serious reader could possibly rely on them. I have not had the time to fact-check every sentence, but below are some of the most obvious errors and false claims.
Factual Error: “Thirty-nine states elect their high court judges.”
Factual Error: “Gov. Blunt lost reelection in 2008 to Democrat Jay Nixon.”
Governor Nixon defeated Republican Kenny Hulshof in the 2008 race for governor of Missouri.
Factual Error: “And in 2011 conservative advocacy groups spent the most money ever in a Wisconsin Supreme Court election as a referendum on Gov. Scott Walker’s antiunion policies, pouring more than $3.5 million into the campaign to secure the state chief justice’s seat for conservatives.”
No one spent a single penny in 2011 “to secure the state chief justice’s seat” for anyone. The chief justice of the Wisconsin Supreme Court is Shirley Abrahamson, a “progressive” who was last up for reelection in 2009.
Factual Error: “Judges in 39 states are seated on the bench through elections just as partisan (and paid for by special interests) as those for governor and state legislators.”
The American Judicature Society’s website lists nine states that use partisan elections while the Federalist Society’s State Courts Guide lists seven. The difference between the Federalist Society’s count and the American Judicature Society’s count appears to boil down to how they treat Michigan and Ohio, where judges can be nominated by party conventions but then appear on the ballot without partisan designation.
Factual Error: “The [Missouri] Appellate Judicial Commission composed of the chief justice of the Missouri Supreme Court, three members of the bar association, and three citizens who serve four-year terms selects several judicial nominees to send to the governor, who then chooses one nominee to become a judge.”
The nominating commissioners serve six-year terms, not four-year terms. Because the terms of commissioners are staggered, the distinction between four-year terms and six-year terms is significant for purposes of discerning who (governor or bar association) controls the balance of the nominating commission.
Factual Error: “Legislators in 24 states proposed legislation during the past legislative session (2011–2012) that would enable governors to replace competent state judges, a power that would, in practice, result in more conservative replacements in states across the country.”
The author provides no footnotes or accounting to explain what 24 states it is referring to, but I find the assertion both mathematically and logically impossible. To begin with, the colored map CAP does provide shows twenty-four states in which (apparently) some sort of legislation, constitutional amendment, or referendum relating to judicial selection was introduced or placed on the ballot. Quite a few of those states are states where judges are currently elected. With respect to Missouri, Florida, and Arizona, each of which was highlighted by CAP, it is demonstrably false that the constitutional amendments on the ballots in those states would “enable governors to replace competent state judges.” It is true that the governor would continue to serve as the final appointing authority, but the same is true today in every state that uses the Missouri Plan, the method of selection preferred by CAP. In short, it is blatantly erroneous to assert that twenty-four states considered proposals that would have allowed governors to simply replace judges at will.
False Claim: ”[Missouri's] merit selection process ensures that the governor appoints only qualified, apolitical judges, as the committee will only nominate qualified, apolitical judicial candidates due to its divorce from politics.”
Going back at least a decade, the overwhelming majority of nominees to the Missouri Supreme Court have been trial attorneys, Democrats, or Democratic contributors. As Professor Brian Fitzpatrick has shown in his empirical study of nominees in Missouri, of the nominees for whom campaign-donation data was available, 87 percent donated primarily to Democrats, while only 13 percent gave primarily to Republicans. The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans.
False Claim: “Since the New Deal, despite several attempts, no state in our nation has shifted to a system for seating state court judges that makes these judges more vulnerable to politics.”
Since the New Deal, at least a dozen states have adopted some form of the Missouri Plan, making it far easier for trial lawyers and left-leaning partisans to dominate state high courts.
False Claim: “After failing to achieve their preferred policy outcomes though the legislative process or the ballot box, these individuals [who seek to reform the Missouri Plan] are now turning their sights on the courts.”
The people of Iowa, through their elected officials, approved a ban on gay marriage. The state supreme court invalidated it. The people of Missouri, through their elected officials, adopted a cap on medical malpractice damages. The state supreme court invalidated it. The people of Alaska, through their elected officials, adopted a law requiring girls under 16 years of age to get parental consent for an abortion. The state supreme court invalidated it.
It is “progressives” who are not winning the policy debates in many Missouri Plan states and who therefore must rely on the judicial branch to bend the law to satisfy the concerns of their left-leaning corporate sponsors. Calls for judicial selection reform will continue until judges in those states learn to decide cases fairly and impartially, based on the law and not on their own political agendas.
Update: To clarify, the quotes I identify above as false are CAP’s, not Toobin’s. I also added a hyperlink to the Toobin piece.
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