A  Wall Street Journal editorial says that used car salesmen would be preferable to lawyers if there was merit selection of judges. 

Some bad ideas never seem to die, especially in the hands of a crafty attorney. That’s the story now playing out at the American Bar Association, which voted at its annual meeting this week to endorse a version of “merit selection” for federal judges. What we have here is the latest lawyer-led attempt to strip judicial selection from future Presidents.

A bit of hyperbolic aplomb.  The merit selection plan endorsed by the ABA wouldn’t strip judicial selection from future presents, but limit it to a group put forth by each states two senators following approval by a merit selection committee. 

Perhaps the WSJ has a problem because presidents are typically so very familiar with local lawyers and their trial experience that they select only the finest to be federal judges?  Not exactly.

But surely he must have heard that merit selection merely takes the partisan politics out of the public eye and into backrooms stocked with political insiders. In states that have adopted the ostensibly nonpartisan system, it has given disproportionate influence to the state trial bars that control selection commissions and have steadily marched state courts to the left.

It strikes me as logical that the people who would be best versed in the competency of a lawyer to serve as a judge would be other lawyers.  It likely has something to do with the fact that lawyers know what lawyers and judges actually do, placing them in a fairly good position to assess the quality of their work.  But that’s really not the WSJ’s beef, now is it?

It’s those darn “state trial bars” again.  Now I’m unfamiliar with how the word “trial” got stuck between “state” and “bar” when it comes to this equation.  In New York, we have a lot of bar associations, one for every group you can think of.  We have ethnic bar associations and practice area bar associations.  We have bar associations for each side of a practice area.  But we also have a state bar association, that is meant to cover all the people in all the other bar associations.  It’s not limited to the dreaded lefty trial lawyers, who aren’t really too lefty but are the subject of some ridicule because they won’t put corporations first.

And the chief arbiter of what qualifies as “merit” soon becomes the lawyers’ club, especially the trial bar. The ABA resolution is explicit on the point that the commissions should be composed of “lawyers and other leaders.” Lawyers might even deserve such pride of place if the judges they chose stuck to judging. But with so many modern judges bent on writing law by fiat, doctors, firemen and used car salesmen are just as qualified to opine on judicial philosophy. In fact, we’d prefer the used car salesmen.

For every plaintiff’s trial lawyer, there’s a defendant’s trial lawyer.  The defense lawyers must be a very shy, retiring group, as no one ever seems to notice they exist.  What’s with that?  One of my best friends has an insurance defense firm, and he’s one of the most gregarious fellows I know.  But he would likely still be a flawed choice, since he would likely chose competency over philosophy. 

The gravamen of this editorial is clear.  If merit selection comes to pass, lawyers can’t be trusted to select people who are slaves to a political philosophy.  Only party leaders can be trusted to do that.  But if it was removed from the hands of those who appreciate that politics is all that matters, at least used car salesmen will focus on political philosophy since they won’t be bogged down by lawyerly concerns like competency.

While the editorial tries to turn the tables on lawyers, as if there was some hidden cabal of greedy trial lawyers pulling the strings behind a curtain to install judges inclined to award massive punitive damages whenever possible, the WSJs effort is a blatant appeal for a judiciary comprised of people who will promote its philosophical position of pro-business, anti-crime and limited access to redress. 

They couldn’t care less about competent judges, as long as they swing the gavel the right direction.  They know what’s right, and they want judicial hacks who will do their dirty work.  All under the guise of “judges who stuck to judging,” and that means outcomes they like.

While I’ve never seen merit selection as a panacea, few editorials have persuaded me to support merit selection more than this one.  But then few have been as crass and obvious.