Brummett Waxes Irrational On Judicial Pick

John Brummett is a big enough man to admit it when he makes a mistake. That is to his credit. He recently did so in a column concerning State Supreme Court Justice Courtney Henry.

He wrote: "I apologize to readers for having recommended Justice Henry’s election last year over John Fogleman. It was the second-worst endorsement I ever made, topped only by that of Mark Wilcox for secretary of state.

I did so only because Justice Henry was married into a prominent political family in Fayetteville for which I have great regard and respect. That she split the sheet with that family a few days after her election took away the only thing that commended her for the job. "

That says a lot right there. John Brummett does this for a living. He has been given a gigantic bully pulpit from which to influence elections. Here we get a critical look at his thinking. He picked Henry because of the family that she married into. On that basis, he elevated her above John Fogelman.

When even a professional opinionator like Brummett can't go any deeper than that on a state supreme court slot, it tells me there is a dearth of information on judicial candidates. And so there is. The way government is set up in this state, people can vote for judges, but it is a vote from ignorance. They are barred by a flawed "Judicial Code of Ethics" from telling anyone anything about their judicial philosophy that might help a voter determine who they should vote for. In the other state supreme court race, Judge Fox made an awful ruling that probably cost him the election, but normally when people vote for judges, they are shooting in the dark. The "Code of Ethics" should be reformed.

Notice I am not busting on John Brummett for endorsing Henry on the flimsy grounds of liking the family she married into. That would be easy points, but it would not be helpful. The truth is even a connected person like John Brummett who is paid to know about these things can't really know much about them the way the system is set up. The intent may be to keep judges from promising to rule a certain way, but the effect is to make elections next to meaningless because people are not informed voters.

So far you may be thinking that my title does not match the contents of the column. I have been fairly charitable to Brummett. Where does the irrationality come in? It is in his proposed "solution" to fix his error.

"This unfortunate episode enhances the argument that we should not popularly elect these justices. The Bar Association should screen and advance candidates and the governor should nominate them subject to state Senate confirmation. "

Now that's what I call waxing ignorant. That is the same process used for the Federal Supreme Court, and it is a proven failure at restraining the growth of the branches it is supposed to check and balance- the Executive Branch in particular. Such a system only worked when the upper chamber was appointed by the legislatures of each state as originally laid out by the Founders. That help insure that Judicial nominees would look after the interests of the states, and of the people, against federal encroachments. This was because the Senate that confirmed them was itself a creature of the states.

All of this changed with the 17th amendment in 1913. Direct election of Senators meant that they no longer had to look out for the interests of the states when confirming Judges. The federal courts have consistently let the rest of the federal government run over the states and the rest of us ever since.

His idea that bar association lawyers will produce more qualified nominees than Henry does not stand scrutiny. Elana Kagan is not a judge. She never sat behind the bench and never tried a single case. She had less judicial experience than Courtney Henry, yet somehow she wound up on the Supreme Court. If we are going to be idiotic about judicial qualifications, then at least let it be the idiocy of the whole people, not of a small group.

The only way to protect our liberties from judicial encroachment is an informed vote of the people themselves, who have to live under the effect of judicial rulings. Confining the selection process to some priestly caste further separates and alienates the governed from the governing. And Brummett himself is what passes for an expert here. HE was supposed to be the expert and he admits that he just picked her because of her in-laws. Clearly, the problem in judicial selection is not that people have a vote, but rather the barriers that exist to an informed vote. The "Judicial Code of Ethics" which throws up deliberate barriers to obtaining vital information about judicial candidates must be reformed.