Bench Memos

A Less ‘Politicized’ Judiciary? Hardly

Rasmussen just came out with a poll showing that a plurality of voters think the courts are too liberal — 38 percent, compared to 18 percent who think they are too conservative. So for all the harping on Citizens United and the distortion of Ledbetter and other recent Supreme Court cases, the voters aren’t convinced.

Even more interesting is the poll’s finding that 65 percent of likely voters would rather elect their own judges than have them appointed by others. Could it be that the voters intuitively know what Brian Fitzpatrick has identified in a Missouri Law Review article, that there are good reasons to be concerned that judges nominated by lawyer-dominated committees will ultimately be well to the ideological left of the electorate?

Fitzpatrick’s data from Tennessee and Missouri — two states that follow the “Missouri Plan” for appointment of judges — undermines the claim of that system’s defenders that their process is non-partisan. In Tennessee, his data showed that 67 percent of appellate nominees had voted in Democratic primaries, compared to only 33 percent in Republican primaries, even though the state’s voters were split evenly between the two parties. In Missouri, the data were even more stark: For 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. Again, this is in a state where the voters themselves were split nearly 50/50 over the same time period, so elected judges would have almost certainly produced less leftist courts.

The failure of the judicial appointment process to produce what its advocates promised — a less “politicized” judiciary — is leading to backlash in Iowa, Missouri, Colorado, and Kansas, and the movement is spreading to other states. Watch out, George Soros, the American people are becoming more and more skeptical of delegating their own inherent power of self-government, and would rather take back that power than hand it over to a committee of lawyers.

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