The constitutional design of our federal government requires an independent judicial branch to serve as a check on the executive and legislative branches.  That constitutional design, embodied in the separation of powers and dependent upon an independent federal judiciary is now being threatened by the automatic budget cuts to the judicial branch mandated by the Budget Control Act of 2011.  The framers of the Constitution did not contemplate that our three branches of government would operate completely independent of one another.  However, implicit in the constitutional design of the federal government is the obligation to adequately fund the judicial branch to fulfill its constitutional role.  Unfortunately, however, we are nearing the point where additional funding cuts to the judicial branch will hamper its ability to carry out its constitutionally-assigned functions.  

In his 2012 year-end report, Chief Justice John Roberts explained the federal judicial branch stands in a markedly different position from the other branches of government when it comes to mandated funding cuts:

Virtually all of the Judiciary’s core functions are constitutionally and statutorily mandated.  Unlike executive branch agencies, the courts do not have discretionary programs they can eliminate or projects they can postpone.  The courts must resolve all criminal and civil cases that fall within their jurisdiction, often under tight time constraints.  A significant and prolonged shortfall in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.  

The sequester will require the federal judiciary to cut $332 million dollars, or approximately 5% from its operating budget for the current fiscal year.  Complicating the problem is that current fiscal year ends on September 30th, and the federal government was already five months into its fiscal year when the sequester went into effect.  

The Administrative Office of the United States Courts recently imposed emergency cost-cutting measures throughout the federal court system as a result of the sequester.  Those measures include a possible suspension of civil jury trials in September, a 30% cut in funding for court security systems and equipment, as well as a reduction in the hours worked by court security officers.  Additionally, up to 2,000 employees could be either laid off or face mandatory furloughs during the remainder of this fiscal year.  These staffing cuts would be in addition to the loss of 1,800 court staff over the last 18 months.  

The federal judiciary was already severely underfunded before sequestration’s mandated budget cuts went into effect.  For 2012, the federal judicial branch’s fiscal appropriation amounted to two-tenths of one percent of the total federal budget.  That means for every dollar of tax revenue received by the federal government, less than two-tenths of a penny was spent on our judicial branch.  

Under its decentralized management system, each federal court has some discretion over how the required funding cuts will be implemented.  So, for instance, several months ago the Chief Judge of the United States District Court for the Northern District of Illinois announced that if the sequester went into effect he would be forced to close the federal courts in Chicago and Rockford one day a week until the end of September.  In the Southern District of New York, the Chief Deputy Clerk recently explained that the District’s Bankruptcy Courts have started to re-use the blank sides of legal briefs as copier paper so that money normally spent on office supplies can be used for wages and salaries of court staff.  This is just the start of the sequester’s impact on the operations of the federal court system.

We may not feel the full squeeze of the budget sequester immediately, but the longer it remains in place, the greater will be its impact on those who seek access to justice.  The size of the automatic cuts mandated by the sequester increases in future years.  Sequestration threatens the protection of fundamental constitutional rights by hampering the ability of federal courts to protect those rights and deliver justice in a timely manner.  Backlogs and delays are now inevitable.  Federal speedy-trial requirements in criminal cases means those matters will be given priority over civil lawsuits.  Citizens seeking to vindicate their constitutional rights and businesses hoping for a timely resolution of complicated disputes will be put on hold.  

Access to justice, an independent federal judiciary, and the separation of powers may seem like abstract concepts. However they are the bulwarks on which our federal court system was built.  In a democracy, justice simply cannot be treated as an expendable luxury in tough economic times.  As one court explained:

[T]he availability of constitutional rights does not vary with the rise and fall of account balances in the Treasury.  Our basic liberties cannot be offered and withdrawn as “budget crunches” come and go, nor may they be made contingent on transitory political judgments regarding the advisability of raising or lowering taxes, or pragmatic or tactical decisions about how to deal with the perennial problem of the national debt.  In short, constitutional rights do not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. Rather, our constitutional rights are fixed and immutable …. The constitutional mandate that federal courts provide civil litigants with a system of civil jury trials is clear.  There is no price tag on the continued existence of that system, or on any other constitutionally-provided right. (Armster v. U.S. Dist. Court for the Cent. Dist. of Cal. 792 F.2d 1423, 1429 9th Cir. 1986.)

Under our democratic system of government, the federal courts stand as the guardian of the rights of all citizens.  Because the sequester threatens the ability of our federal courts to protect the rights of citizens, and to serve as an effective check on the legislative and executive branches of federal government, we are seeing the first signs of a constitutional crisis looming on the horizon.  Critical to the ordered liberty of American democracy is an independent judiciary.  That independence is now challenged by mandatory budget cuts.  If the legislative and executive branches of the federal government refuse to fund the federal judiciary to a level needed to adequately fulfill its constitutional function, then the separation of powers mandated by our Constitution will be fractured.

Steven Puiszis is a member DRI’s Board of Directors and Chair of the DRI Judicial Task Force.  He is a partner in the Chicago office of Hinshaw & Culbertson LLP.  He was Editor of DRI’s latest publication on judicial independence, Without Fear or Favor in 2011, available at: http://www.luc.edu/law/media/law/news/pdfs/1794745.pdf.
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Apple, Samsung and Possible Sanctions

Posted on August 9, 2012 02:33 by Stacy Moon

Apple recently asked a judge hearing a patent infringement case to sanction attorneys for Samsung after those attorneys issued a press release with a link to documents that had been ruled inadmissible.  The actual quote from the press release was apparently, “"fundamental fairness requires that the jury decide the case based on all the evidence.”  Essentially, Samsung’s attorneys decided to try the case in the media, as well as in the courtroom.  Apple took the position that the press release was an attempt to influence the jury.  The attorneys for Samsung argued it was simply a press release.  The Judge has indicated additional investigation may take place after the trial, but that he would not allow “theatrics” or “sideshows” (his words, not mine) to interfere with the trial.

Trial publicity is an issue that crosses various legal disciplines.  It affects criminal and civil cases alike.  In Alabama, a lawyer is not permitted to make “an extrajudicial statement that a reasonable person would expect to be disseminated . . . if . . . it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”  Ala. R. Prof. Cond. 3.6.  Unfortunately, the vast majority of that rule deals with publicity around a criminal case, not a civil case.

Most clients carefully control the amount and type of publicity regarding a case, recognizing that the publicity can be a two-edge sword.  In many cases, clients do not want any public statements regarding the case.  In my opinion (and my personal opinion only), it is therefore unlikely that Samsung did not approve the press release.  The question is what purpose did it serve?  If it was a backdoor attempt to get the jurors to view the inadmissible documents, the press release and link was clearly improper, and (I would argue) potentially demonstrated contempt for the rules of evidence, and Samsung’s counsel should have refused.  If it was an attempt to put public pressure on the judge to reconsider his ruling on the admissibility of the documents, it failed miserably, and has potentially adversely affected the judge’s opinion of counsel.  Save such an attempt for the appeal.  Now, at trial, if it is a close call, the judge is unlikely to give Samsung’s attorneys the benefit of any doubt.  If it was for neither purpose, it seems like a somewhat pointless exercise (akin to a temper tantrum), which has now brought the attorneys’ credibility and professionalism into question in the middle of a high-profile trial.

All attorneys should ask themselves whether the risk of damaging their credibility in front of a trial judge in such a matter is really in the best interest of their clients.  Additionally, all firms should ensure that they have a clear policy in place, including designating one attorney to respond to press requests for a statement or release regarding a case.  That person should be required to carefully analyze the pros and cons of making any statement to the press before doing so.

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In an earlier article, we discussed the danger posed to an impartial jury system by the “Googling Juror.” In his article titled “Lawyers’ Use of Internet to Influence Jurors” (New York Law Journal, 6/12/12), Michael Hoenig cautions that “the danger to fair trials posed by Internet-surfing jurors is exacerbated by lawyer ‘advertising’ of their prowess or success on websites, by publishing case-specific information on firm sites or blogs or other Internet outlets, and by skillfully weaving inaccurate, misleading or self-serving messages, and ‘depositing’ them where straying jurors can ‘find’ them.” 

Hoenig concludes that these can be purposeful stratagems or innocent puffing. He points out that despite First Amendment protections, courts can and should restrict prejudicial speech by attorneys. He cautions that lawyers must be diligent in reviewing whether their adversaries (or agents) might be depositing messages about case facts or party litigants, or extraneous, non-admissible information on websites, blogs or other internet locations with the expectation that a straying juror would find the information. Even if the specific facts of a case at trial are not discussed, prospective or sitting jurors can still peruse the attorney’s website, noting biographical information, the firm’s specialties, featured clients and the “war stories,” crusades or victories many firms describe. Hoenig believes that this information likely will be passed to other jurors.

Lawyers do have First Amendment rights to a wide range of speech but they are also subject to reasonable restrictions as officers of the court. Further, lawyers are bound by ethical rules. Rule 3.6 of the Model Rules of Professional Conduct prohibits an attorney from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 8.4 prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation” and also states, “a lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce to do so, or do so through the acts of another.”  The article discusses the facts of some of the cases that are emerging in this important area of the law. 

Thus, it is essential that trial counsel perform their own internet investigation concerning both the subject matter of their upcoming trials, and their adversaries' internet materials, to determine whether prejudicial information available to prospective jurors has been posted.

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Recently, Montana’s chief federal judge admitted to forwarding an email from his court email account that included a racist “joke” involving bestiality and President Barack Obama's mother.  Judge Richard Cebull has since issued a formal apology to President Obama and has asked for a formal judicial review of his actions.  Earlier this week, two members of the House Judiciary called for a hearing to examine the judge’s conduct.  Representatives John Conyers of Michigan and Steve Cohen of Tennessee told Committee Chairman Lamar Smith in their letter that the committee has a duty to investigate the potential consequences of Judge Richard Cebull’s email.   “At a minimum, forwarding this email illustrates poor judgment and of conduct that was unbecoming of a federal judge,” they wrote.  “More troubling, however, is the possibility that public disclosure of the judge’s conduct may not only undermine the public’s view of his personal credibility and impartiality as a judge, but also the integrity of the ... federal judiciary.”

More than 70 percent of President Obama's confirmed judicial nominees during his first two years were "non-traditional," or nominees who were not white males.  That far exceeds the percentages in the two-term administrations of Bill Clinton (48.1 %) and George W. Bush (32.9 %), according to Sheldon Goldman, author of the authoritative book Picking Federal Judges.  "It is an absolutely remarkable diversity achievement," said Goldman, a political science professor at the University of Massachusetts at Amherst.  Are Judge Cebull’s actions an isolated incident or an indication that we still have a long way to go with regard to diversity efforts in the legal profession?

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The Push for Judicial Diversity

Posted on August 5, 2011 02:46 by Alison Y. Ashe-Card

During his presidential campaign, President Obama expressed his desire to diversify the federal judiciary which is primarily comprised of white men.  As a result of his administration’s efforts, we have witnessed the first Hispanic sworn in to serve on the United States Supreme Court, the first openly gay man appointed to a federal district court and the first Chinese, Korean and Vietnamese women judicial nominees.  "Having racial diversity, gender diversity, experiential diversity — all of those things we are mindful of and committed to seeking out when we're looking for the best candidates," Kathryn Ruemmier, the new White House counsel, tells National Public Radio (NPR).  Almost half of the 97 candidates who have won confirmation during Obama's presidency are women and approximately a quarter are African-American. 

 

According to Ed Whelan, a prominent conservative who used to work in the Justice Department during George W. Bush’s administration, "The Obama administration doesn't have a coherent judicial philosophy so it's not surprising that it's falling back on diversity, which I think it sees among other things as appealing to its various political constituencies."  The notion that judges’ decision-making might be affected by their gender and race or ethnicity is incompatible to those who view "judging" as the objective disposition of cases without regard to judges' personal backgrounds, biases, attitudes, and ideologies.  However, research studies underscore the importance of diversity on the bench.  Is advancing judicial diversity a "coherent judicial policy"?  Should the face of justice be a reflection of all of us?

 

 

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Despite significant progress for women in the legal profession, there are some differences in the way men and women are expected to behave that may not change until societal norms and expectations change as a whole.  In a recent article in the ABA Journal, Justice Sotomayor provided some thoughts about the differing expectations of male and female judicial candidates  She remarked that she was offended by some of the questioning that took place during her confirmation hearings, especially questions related to her dating history.  Her dating history was a hot topic because Justice Sotomayor has been divorced since 1983 and never remarried.  For a male federal court judge that fact may not matter.  But for a female judge this fact along with who you have dated, how often, and who you choose to bring to public events easily becomes a source of scrutiny. 

It’s a classic double standard that is unfortunate and unfair.  Proposing a ban on personal questions in confirmation hearings and interviews is probably not enough to change things because you can’t stop people from making assumptions about a woman’s professional ability based on her behaviors in her personal life.  Personal opinions, assumptions and expectations are bred into us through society and the media – many on a subconscious level.  Ultimately, societal and cultural views would have to change before women can feel free to act in the same manner as men without the worry that they will risk their professional reputations.  Whether that can happen depends a lot on those with the power to shape the parameters of what is or is not acceptable within their own offices and professions – be that law partners or politicians. 

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Merit Selection Under Attack

Posted on March 10, 2011 08:42 by Steven Puiszis

Many states around the country select judges through a merit selection process.  While the process can vary between states, typically a nominating commission comprised of both attorneys and non-attorneys screen judicial candidates and make a recommendation to the governor, or in some instances the legislature, concerning the judicial candidates.  While no judicial selection system is perfect, merit selection eliminates the need for judicial candidates to initially run for election, which in turn eliminates the need to campaign and fundraise.  At some point merit selection judges may have to for retention, but historically retention elections have drawn less attention and partisanship than contested judicial elections.

Since 1913, the American Judicature Society (“AJS”) has promoted sound merit selection systems throughout the country.  Recently they issued an “action alert” because merit selection systems are under a “sustained and coordinated attack across the country.”  In their action alert, they note that bills are pending in Arizona, Florida, Hawaii, Missouri, Kansas, New York, Oklahoma and Tennessee to significantly modify or eliminate merit selection plans entirely.  A copy of the AJS action alert can be found at: ActionAlert.pdf.  The alert includes links to all of the pending bills in each state which challenge the state’s merit selection process. 

Later this month, DRI’s Judicial Task Force will be publishing a report entitled Without Fear of Favor in 2011, A New Decade of Challenges to Judicial Independence and Accountability, which details the various challenges to judicial independence caused by partisan judicial elections,  As the Task Force notes in that report:

Any good trial attorney knows that in a courtroom, perception becomes reality and that maxim holds true for our legal system.  The public’s perception of the fairness of our courts is a direct correlation to its confidence in the American justice system and its respect for our rule of law.  If the public’s perception of the fairness of our courts is ever lost, immeasurable damage will result to our legal system and the rule of law in our country.

Harsh attack ads and major fundraising efforts that have become the norm in partisan judicial elections are harming the public’s perception of the fairness of our judicial system.  The organized defense bar, long a champion of level playing fields and fair court systems must concern itself with these issues.  If you practice in one of the states where merit selection is under attack, there are certain things that you can do.  Make your views known to your legislators.  As the AJS action alert aptly notes, it is of vital importance to keep money, partisan politics, and the influence of special interests out of the judicial selection process.  Also consider writing an op-ed piece or a letter to the editor defending merit selection in your home state.
Members of the defense bar are in an ideal position to protect the system of justice and the independence of the judiciary.  We must begin to do so before the concept of judicial independence is mortally wounded.

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Why are Federal Judges Leaving the Bench?

Posted on February 9, 2011 01:20 by Steve Puiszis

One of the articles featured on DRI Today asks: Where Have All the Judges Gone?” The article notes that so far this year, federal judges have been leaving the bench at a rate of one per week and that the number of federal judicial vacancies has doubled in the last three years. The article attributes the rise in judicial vacancies to a “host of factors” including Senate Republicans, the White House and “a dysfunctional Senate confirmation system.” While those are factors that might explain delays in filling federal judicial vacancies, the article misses the basic reason why many federal judges are leaving the bench. Put bluntly, it is their compensation. When second and third year associates in some of our country’s largest law firms earn more than many federal judges, it should come as no surprise that more and more of them are leaving the bench and turning to employment in the private sector. 

Alexander Hamilton, in The Federalist No. 79 recognized: “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” Federal judges have not received a raise in their base salary in well over a decade and also have been denied cost of living adjustments a number of times since then. Hamilton’s warning appears to be borne out by the spate of recent departures from the federal bench. 

The Framers of our Constitution wanted to ensure the independence of federal judges through the provision of lifetime tenure. However, the Framers’ goal of judicial independence is being frustrated by the failure to provide adequate compensation to federal judges. Chief Justice Roberts in his 2006 Year-End Report on the Federal Judiciary observed that federal judges “accept difficult work, public criticism and even threats to their personal safety,” and while they may be willing to accept less than what could be earned in the private sector, “[t]hey can rightfully expect, however, to be treated more fairly than they have been.” Justice Roberts also warned in his 2006 Report: “If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers’ goal of a truly independent judiciary will be placed in serious jeopardy.” We are seeing Justice Roberts’ warning now being played out before our eyes.

So, what can you do to protect the independence of our federal judges? Write to your elected representatives in Washington, D.C. and advocate pay increases for them. The maintenance of judicial independence at both the state and federal levels requires your support.  DRI, as the Voice of the Defense Bar, recognizes that our members have long been advocates of level playing fields and fairness to all parties in litigation. However, we must now also focus our attention on protecting the independence of our state and federal judges. 

Later this month, DRI will publish a report from its Judicial Task Force entitled: “Without Fear Or Favor In 2011, A New Decade Of Challenges To Judicial Independence And Accountability.” That report discusses a number of challenges to judicial independence, and outlines possible solutions to those issues. The challenges to judicial independence caused by inadequate compensation and a politicized appointment process noted above are two of the issues addressed in that report. However, achieving those solutions require your involvement and support.

ABOUT THE AUTHOR

Steven M. Puiszis is a partner in the Chicago offices of Hinshaw & Culbertson LLP.  He is a member of DRI’s Board of Directors, and is the Chair of DRI’s Judicial Task Force. He also is the editor of “Without Fear Or Favor In 2011, A New Decade Of Challenges To Judicial Independence And Accountability.”

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It should come as no surprise that the federal judiciary is calling for greater security due to threats from people who have been denied Social Security disability benefits.  Dissatisfaction with the judiciary, and resulting threats against judges, their families, and their staffs is a real and growing problem.  The level of dissatisfaction and the related growing level of threats is attributable in large part to the availability of internet websites and blogs that are created and fueled by unhappy litigants.  Even a brief scan of the internet will produce dozens of single issue sites in which writers are encouraging disobedience toward judicial orders and violence against judges. 

Another significant reason for increasing hostility toward judges is unjust criticism from the other branches of government.  Hardly a day passes that a senator, congressman, governor or mayor is not lambasting a judicial opinion on cable news or on the internet.  While freedom of speech certainly gives anyone the right to criticize judicial decisions, the public criticism from elected officials is growing increasingly personal, and is frequently uninformed and unsupported by the facts of a particular case.  Judicial ethical canons prohibit judges from reacting to these attacks, so the public usually hears only one side.

Every bar association at every level (including state and local) must give consideration to creating active committees to scrutinize judicial criticism and to react when criticism of judges goes beyond the bounds of fair comment.  These committees should also be actively involved with the Chamber of Commerce, judicial associations, and local subdivisions of government to make certain that our courthouses are safe for the judges, their staffs, and the lawyers and consumers who visit the courts.  If we in the  organized bar do not step up and begin responding to unfair and uninformed criticism of the judiciary, then threats against judges on all levels will continue to escalate, and well-intentioned people will cease to want to work in the judiciary.  More importantly, the public will lose confidence in an important branch of government that relies upon public obedience to its orders.

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Judicial Selection in Texas

Posted on March 20, 2009 03:40 by David M. Davis

The Texas Legislature is in Session. Every two years the Texas Legislature meets for 5 months. An issue that has been addressed previously and that has become more timely in Texas is Judicial Selection. All Texas judges are elected in partisan elections. As a consequence, the "down ballot" races, such as the judicial races are often decided by hotly contested national or state-wide races. Recently, the judiciary in Houston, Harris County, virtually turned over during the presidential election of 2008 with over 40 Republican District Judges being replaced with 40 new Democrats. Because of this the issue of judicial selection is a hot button issue in Texas.

Texas Association of Defense Counsel member Mike Thompson co-authored this piece with former Texas State Bar President Broadus Spivey. It appeared in the March 16, 2009 issue of the Austin American Statesman.

OTHER TAKES
Spivey & Thompson: The problem with merit selection of judges
Broadus Spivey and Mike Thompson Jr., Local Contributors

Monday, March 16, 2009

For over 150 years Texans have enjoyed a Constitutional right to an elected judiciary. All through that history some have argued that we should move away from the system of partisan judicial elections. Most recently, those voices have included the Austin American Statesman and Chief Justice of the Texas Supreme Court Wallace Jefferson.

The Chief Justice and Statesman appear to argue for a system used in some states of "merit-selection" of judges by the Governor from a list of candidates generated by a committee and then a later non- partisan retention election of that judge. This seems to derive from the Missouri plan. The Statesman believes this would lead to a better judiciary. Supporters also argue that such a reform would remove politics from the system. Finally, they argue that the reform really isn't that big a change because the people retain the right to vote to remove judges in the retention elections. We disagree that partisan judicial elections should be abandoned and answer each of these arguments below.

Retention system doesn't create a "better" Judiciary

Those seeking change to the way Texas picks its judges suggests that the appointment and retention election system of picking judges will create a better judiciary. To fairly consider whether this is true or not, consideration must be given to what makes a good judge. Most would agree that a good judge should be independent. Most would also agree that they should also be accountable to citizens so as not to be arbitrary in decision-making.

In computing whether or not a retention election system like that proposed by the Statesman will give us a more qualified judiciary, we can draw on the experience of many other states as well as the federal system which has never settled for an elected judiciary. There is also a fair amount of research that has been done on strengths of each system. Those resources can and should be compared to the Texas system.

We believe that Texas judges, by and large, are as well qualified as those from states with retention election systems or their federal brethren. Any judiciary in the country would be proud to have judges the quality of former Texas Supreme Court Justices Joe Greenhill, Bob Calvert or Craig Enoch and present judges like the Chief Justice. All of these distinguished judges were elected or reelected to the Supreme Court in contested partisan elections.

As noted, Social Science Professors have studied the lessons of merit selection in other states. A committee studying the issue quoted Professor's Shuman & Champagne summary of the social science investigation on the subject as teaching "the quality of judges in a merit-selection system are no better than those selected by voters ... ".p. 4 "The Case for Partisan Judicial Elections," Judicial Selection White Papers, Professor Michael Debow http://www.fed soc.org/publications/pubID.90/pub_detail.asp Federalist Society, 2003 visited Feb. 16, 2009. The authors concluded: "Much research has been conducted, looking for evidence that Missouri plan judges are systematically better qualified that elected judges. No evidence of this sort has been found". p. 4.

The next question to answer to decide whether this reform will lead to a better judiciary is whether judges in merit selection states are more independent than the Texas judiciary. In the classic study of the Missouri Plan, The Politics of Bench & Bar the authors found—the competing plaintiff and defendant bar were about equally successful in obtaining seats for judges they supported for appointment. Thus, the result was a relatively well -balanced "two-party" competition. However, that competition took place in a subterranean process beyond popular control. Thus, in reality the competition continued just without the people having a meaningful say.

Politics remains in the retention system just as in system of partisan elections.

The reformers at the Statesman suggest that with retention elections, the picking of judges will be less political. Yet, as pointed out above, those who have studied the system in such states have come to a far different conclusion. The interest groups who have a significant stake in the judiciary will continue to work to promote their interests no matter what formula is used to pick judges. Again, the research shows that those with the greatest interest (i.e. The bar) have a way to make themselves felt regardless of method employed. Nor has the federal appointed system demonstrated an absence of politics in the selection of judges.

In its editorial, the Statesman argues that an imminent ruling from the US Supreme Court in the Caperton v. Massey case will change the calculus of judicial elections. While Caperton is an important case regarding recusal of judges, the Supreme Court has previously considered and found that independent political speech like that used in the West Virginia judicial elections at issue in Caperton do not pose a threat of corruption or the appearance of corruption. Randall v. Sorrell, 548 U. S. 230 (2006); Buckley v. Valeo, 424 U.S. 1 (1976).

The people don't retain any meaningful right to vote in the merit selection plan.

In the merit selection of judges plan, the people have no real right to vote. What they are left with is an uncontested retention election years after an appointment by the Governor. Social science studies researching the issue have shown that less than one percent of all judges standing for retention elections have been removed. This is significantly smaller than in partisan elective systems. Further, while turnout is low in typical judicial elections it is even lower in retention elections. With no live opponent, retention elections do not generate the publicity that brings voters to the polls. As note earlier, politics isn't removed from the merit selection process thus at the end of the day only the right of people to participate is.

Judicial partisan judicial elections have substantial advantages over the alternatives. Not least of which is that they provide an additional, significant measure of self-government to voters. Or as Professors' Chris W. Bonneau and Melinda Gann Hall propose in their new book In Defense of Judicial Elections, judicial elections are efficacious mechanisms that enhance the quality of democracy and create a link between citizens and the judiciary. Indeed, this link between self -government and judicial selection may be most important to confirm that Judges are not apart and superior to citizens they serve.

Thomas Jefferson considered the issue and wrote:

"The exemption of the judges from {election} is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome direction, the remedy is not to take it [power] from them, but to inform their discretion by education."

Thomas Jefferson, Writings, Vol. XV, p. 278. We believe Thomas Jefferson was right and the people's right to meaningfully participate in electing their judges should be preserved.

Broadus Spivey is an Austin attorney and former president of the state bar. Mike Thompson Jr. is an Austin attorney. He is a member of the Federalist Society, the Texas Association of Defense Counsel and Sam's Club.

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