Bench Memos

ABA President: James Madison Was a Hack

As I reported in late April, the Tennessee legislature has given first-round approval to a constitutional amendment that would scrap the state’s Missouri Plan method of selecting judges. In its place, the amendment would provide for appointment by the governor with the advice and consent of the legislature. The amendment was approved once by overwhelming bipartisan majorities in the legislature, but must now be approved again, by a two-thirds vote, and then by the people on the 2014 ballot. A few days ago the president of the ABA, Bill Robinson III, published a column in The Tennessean arguing that the people and their representatives should reject the amendment. It basically repeats the talking points you are accustomed to hearing from left-wing special interests like trial lawyers and various Soros-affiliated organizations. According to Robinson, “merit-based selection is the best way to choose judges,” judicial selection should be “apolitical,” and “the qualities of a good judge are the same across the political spectrum.” News flash for Mr. Robinson: As the empirical evidence is confirming, there is no way on earth a lawyer-dominated “independent” commission will be “apolitical.” So the key is to do what James Madison and others advised for the United States: increase accountability and transparency so that those engaged in politics are responsible to the people for their decisions.  

With respect to the Tennessee amendment, which mirrors the federal method, he claims that “Politics will play a larger role if Tennessee throws out the judicial nominating commission in favor of a proposal that would have the governor pick judges without the advice of an expert commission.”  

To quote Collin Levy’s response in the Wall Street Journal: “The ABA thinks the federal method is radical?” I assume Mr. Robinson has never read the relevant essays in The Federalist, James Madison’s Notes on the Debates in the Federal Convention, or other records on the debate that ultimately produced the federal method of selectionIf he had, he would realize that his column in The Tennessean reads like a poorly reasoned response to the arguments set forth by the Founders in defense of the U.S. Constitution’s method for selecting judges. 

Of course it is possible that he and his ABA colleagues just don’t like the federal method, and that they plan on pressuring the winner of this presidential election to adopt some federal-style Missouri Plan. If that is the case, I look forward to watching their plan go down in flames.  


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