Bench Memos

Media Matters Defends the Center for American Progress

David Lyle at Media Matters for America has responded to my fact-checking of two Center for American Progress reports. He ignored most of the factual errors I pointed out and provided unpersuasive counter-arguments with respect to two.

With respect to my assertion that it was factually incorrect to state that “Thirty-nine states elect their high court judges,” Lyle responds:

Severino’s claim that the studies exaggerate the number of states that “elect” their high court judges hinges on excluding the common practice of retention elections, in which judges who have reached the bench by appointment or other means periodically come before the voters in referenda on whether they should be retained in office.

Lyle thinks I should have counted the way states retain judges, not just the way they are initially selected. But I used the same standard as the Center for American Progress, whose report erroneously stated that “judges in 39 states are seated on the bench through elections.” So Lyle’s gripe is really with the report’s authors, who set the standard as initial selection. Insofar as he would like to conflate elections and retention elections, I find it hard to believe a highly credentialed lawyer like Lyle really believes that the two are the same, in theory or in practice.  

As Lyle must know, a retention election is one of the essential features of the Missouri Plan, and voters in a retention election do not have the option of “electing” an alternative candidate. The most a voter in a retention election can do is vote to fire the current judge, whose replacement would be selected by whomever dominates the state’s Missouri Plan nominating commission.  

Lyle also should be aware of Larry Aspin’s study of retention elections between 1964 and 2006, published by the left-leaning American Judicature Society, in which Aspin explained that judges standing for retention in those years failed to win retention in only 56 of the 6,306 retention elections. That’s less than 1 percent. Moreover, according to Aspin, “91.1 percent of the defeated judges were major trial court judges,” not high court judges, and “51.8 percent of the defeated judges were in Illinois.” Why do judges almost always win such retention elections? In short, because the absence of an opposing candidate (it is a “yes/no” proposition) leads to a shortage of information, debate, and public involvement, which translates into overwhelming margins of victory in almost every case. As Professor Michael Dimino has argued: “Retention elections seek to have the benefit of appearing to involve the public, but in actuality function as a way of blessing the appointed judge with a false aura of electoral legitimacy.”  

To the extent that some major inflection point does lead the public to get involved, as we’ve seen in states like Iowa in 2010 and Florida in 2012, liberals suddenly come out of the woodwork to complain about retention elections. Should we take those complaints to mean that organizations like the Center for American Progress and Media Matters disfavor the Missouri Plan, since that is the method of selection most associated with retention elections? I doubt it. The tone of the Center for American Progress reports was clearly in opposition to judicial elections, not the Missouri Plan. As to the Missouri Plan, what they really want to say, but can’t, is that they like the fact that it allows unaccountable lawyer-dominated commissions to select judges, but dislike the fact that the accountability mechanism designed to assuage the public (the retention election) is no longer being ignored. 

Lyle also contested my assertion that it was factually incorrect for the Center for American Progress to state that “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.” Among the states identified in the report’s color-coded map were Wisconsin, Ohio, and Pennsylvania, states where judges are currently initially selected by contested election. In each of those states interim vacancies are already filled by the governor, which is to say governors in those states already have the power to replace judges. Should I take their inclusion to mean that Lyle and the Center for American Progress oppose efforts to replace the initial elections with gubernatorial appointments? Or is it more likely that someone at the the Center for American Progress was terribly sloppy? In any event, since Lyle is putting his reputation on the line for these sloppy publications, perhaps he could provide me with a list of the states and the specific proposals to which the report referred. Then I could more precisely evaluate the claims, and, if necessary, acknowledge any error on my part. 

Lyle did not contest my assertion that the Center for American Progress made the following factual errors, so I take it he agrees that they should be acknowledged and corrected.

1. Governor Blunt did not lose reelection in 2008 to Democrat Jay Nixon; Nixon beat Representative Kenny Hulshof to become governor.

2. The high-profile 2011 Wisconsin Supreme Court election was not for the Chief Justice’s spot; progressive Chief Justice Shirley Abramson had just been reelected in 2009.

3. Judges are seated on the bench by partisan elections in only nine — not 39 — states.

4. Members of the Missouri Appellate Judicial Commission serve terms of six, not four, years.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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