Judicial Reform Part 2 – ProFamily Legislators Conference: Today we”€™re sharing part two of a presentation with David Barton and Scott Gaylord from the Pro-Family Legislators Conference. How do we fix the court system? Tune in now to finish yesterday’s program and find out!

Air Date: 1/08/2019

Guest: Scott Gaylord

On-air Personalities: David Barton, Rick Green


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture


Welcome to the intersection of faith and the culture. This is WallBuilders Live! Where we”€™re talking about today”€™s hottest topics on policy, faith, and the culture. We always do that from a biblical, historical, and constitutional perspective.

My name is Rick Green. I’m a former Texas legislator. Usually here with David Barton America’s premier historian and with Tim Barton, national speaker and pastor. But those guys are at the ProFamily Legislators Conference. And we want to bring you to the profe legislators conference through radio today.

We’re actually going to pick up on a presentation that took place at the conference. We gave you the first part of it yesterday. It was Scott Gaylord and David Barton. They were talking about judicial reform. We only got halfway through the presentation. We’re going to jump right back into it right now picking up where we left off yesterday. If you missed that program yesterday it’s available right now at WallBuildersLive.com.

Here we go. David Barton and Scott Gaylord at the ProFamily Legislators Conference.

Scott Gaylord:

John Jay who was Chief Justice in the United States Supreme Court decides– he’s put up for reappointment by Adams and he says, “€œThanks, but no thanks. I’m going to New York to run for governor. This thing is never going to work. It can’t do anything. Are you kidding me? It is so ineffective.”€ Can you imagine Chief Justice Roberts saying, “€œI”€™ve thought about it – I don’t do it anymore.”€? “€œIt”€™s just not that important. No big deal.”€ No way, right?

The Chief Justice of the United States Supreme Court is probably one of the most powerful people out there right now right in terms of what they have the ability to do and sort of interpreting the Constitution in the United States and setting policy. So, a great weakness at the state level, as it turns out, it was even weaker. So, there”€™s Hamilton and Jay.

The Power to Remove Is the Power to Control

Scott Gaylord:

At the state level judiciary were even weaker because the legislature not only in eight of them had direct ability to appoint these individuals, but there are a whole series of ways in which they could get rid of judges if they didn”€™t like it. So, the power to remove is the power to control.

You had impeachment, as I mentioned. Removal by address was a situation where you could have either a bare majority or a super majority of the legislature just petition the governor – “€œYeah, we don’t like Judge so-and-so. Get rid of her.”€ Well, at the time it”€™d be “€œhim”€ “€œGet rid of him.”€ And the governor then would remove the person. So, a lot of dependence on it, they would shorten the terms of the judiciary.

And * bills were used to get rid of the entire jurisdiction of courts. They just passed legislation saying, “€œYou know what? Those courts can no longer hear those cases. They’re done. They’re gone. Or, better yet, we’ll just remove all the judges altogether, replace them with folks we like.”€ Notice the threat for capture and bias in this situation.

In terms of separation of powers and trying to have some type of check, that goes out the window because the judges have to do what the legislature wants. Otherwise they’re not going to be in their positions very long. As a result of those concerns you see today movement away from– and so again, held up as a paradigm a lot of times in discussions about judicial selection, but we have only five states that use the Democratic appointment directly. And we have three of those that go with gubernatorial appointments and only two that use legislative appointments today wholly.

There are hybrid methods and ten states use some type of hybrid method which will include a nominating commission. I’ll talk about that with respect to merit– what’s sometimes referred to as merit selection – the same idea of the Missouri Plan. I think some folks here are from Missouri, so you know the Missouri Plan and have it – other states do as well. Tennessee has a very– how should we put it nicely?– interesting variation on the Missouri Plan with all sorts of moving parts, but not used by all that many, really.

Hybrid Methods Still Have Problems

Scott Gaylord:

The hybrid method gives you the Democrat appointment, but I think still has these problems that are inherent in nominating commissions and we’ll talk a little bit about that towards the end of the talk right now.

The shift to judicial elections, then, so you have all the states coming online and going along with Democratic appointments. We see, I think, three factors really. The first one is this idea of the Jeffersonian Republicans going after the judiciary. This was sort of a concerted effort going back to the battle between the federalists and the Jeffersonian Republicans in the Election of 1800. I don’t know if you have a favorite election. I do. That’s mine.

It’s really interesting things going on between the Federalists and the anti federalists. The federalists are on the way out, losing power, they lose the presidency, they lose control of Congress. And on their way out they pass legislation creating new courts. It”€™s what I call the first court packing plan. They try to get the federalists– it was the weakest branch, thought to be the weakest, but it”€™s the only thing they”€™ve got left, so let’s take advantage of it. And Jefferson wasn’t fond of that, let’s just put it nicely.

As a result you see this tension and the Jeffersonian Republicans at the federal level and the state level try to go after the court and weaken the courts. They think the courts are going to be too strong, could have too much influence, so that’s one factor.

Jacksonian Democracy is the other thing. In the early part of the 19th century Jackson has this movement to empower the people, to move power away from political elites to the people themselves, and to try to promote participation. Starts out largely with respect to the executive branch and trying to get more executive elections, but we see it trickle into the judicial as well. Georgia in 1812 becomes the first state to elect its lower courts and by 1832 Mississippi is the first state to elect all of its judges through popular elections. So, the Jacksonian Democracy is one factor I don’t think it’s the dispositive, but an important influence.

How Did We Get to This Point?

Scott Gaylord:

And then the weak judiciary couples with financial crises that start resulting in the 1930s. These are called the panics of the 1930s– 1830s– the panics of 1830s – 1837 and 1839. They were financial crisis and largely because of executive and legislative overreach, if you will. The executives and legislatures start spending dramatically on public works projects.

Think Erie Canal as the paradigm. Erie Canal works, other states say, “€œThis is great. We’re going to take out huge loans, rack up debt, and create road projects, canal projects, railroads.”€ And all of a sudden it comes tumbling down at the end of the 1830s. We get a depression in the 1840s, a bunch of states default, there’s a crisis going on across the country, and even internationally, with respect to it.

And the people start looking and saying, “€œHold on a second, how did we get to this point? How did we get into this financial ruin?”€ And part of the thought is because we didn’t have a judiciary that was able to check the legislative and executive branches. They were just too weak. They weren’t able to rein in legislative and executive overreach.

So, a movement begins starting with New York State, really, in 1846 to shift towards judicial elections. And I think these elections are meant to do at least three different things.

One, we need to get stronger courts. We need to strengthen. Separation of powers is important. Right now we have the judiciary under the power of the legislature. We need to separate those out and give the judiciary more power and enable them to exercise the power of judicial review. That doesn’t mean always just with respect to constitutional issues, but statutory interpretation, other things, get out from under the legislative branch.

At the same time we need fewer partisan appointments. So, even if we give the judiciary the power, if the people exercising the power – the judges – are all best friends and partisan cronies of the legislature, they”€™ll never exercised the power. So, that can’t be a good use. We need to split that. Get rid of this appointment power in the legislature, give it over somebody else.

Judicial Elections

Scott Gaylord:

And then the third thing – if we’re going to increase the power, we’ve seen what happens with legislative excess, we’ve seen what’s happened with executive excess going back to the founding. What happens if the judiciary has more power? How do we check judicial overreach? And the solution was for the vast majority of states in this period is going to be popular elections. The way to restrain, to promote, independence and accountability at the same time is going to come through judicial elections.

So, New York, as I mentioned, does this in 1846. In the next 15 years 24 of 34 states end up with some form of judicial elections. 20 have it for all their judges. Four others for their lower courts. And that’s a dramatic shift from the founding where you had the Democratic appointment method.

So, judicial elections become very popular, very important. And if you”€™re interested in judicial elections, Sherman’s book is one of the leading historical treatises on the history of judicial elections in the United States.

Through this process then, we see it carry forward to today. Today we have 22 states that use judicial elections to select members of the court. Seven of those use partisan elections and 15 are nonpartisan. We’ll talk a little bit about the differences for those in just a couple of minutes.

But important, North Carolina, my home state, just came back online with partisan elections. And West Virginia went from partisan to non-partisan. So, still 22 – we”€™ve just had a little movement, a little change, in the states as to what’s going on with partisan elections. And then another 16 states use what are called retention elections. Retention elections are an up or down vote on a judge.

So, the judge does not have an opposition candidate for a position. The judge has served for a number of years. At the end of that term, the judge goes to the electorate and it’s just, “€œDo you want to retain or not retain?”€ That’s all. And that retention election, then, will determine whether the judge continues. If not, then the judge would be out of office and whatever your selection method would kick back in.

John Locke and Montesquieu

Scott Gaylord:

A lot of times in these states would be judicial nominating commissions will be used to replace the particular judge in the particular situation. So, that’s sort of the landscape with respect to judicial elections.

With respect to it– I think a couple of points with respect to judicial elections. One is this idea of independence, as we mentioned a couple of times. The independence is important. This will foster separation of powers concerns and I think that’s important. Again, historically, this was a big issue for the founders and even before that. John Locke back in 1690 started talking about the importance of separating powers, but his focus was just on executive and legislative at the time.

Fast forward – Montesquieu in the spirit of the laws in 1748 talks expressly about the importance of keeping each branch separate and distinct from each other. That if any of the two come together you’re going to have the makings of tyranny, you”€™re going to be able to deprive people of the liberty. And even Hamilton suggests this that the judiciary is the weakest branch provided it’s separate and distinct from itself. As soon as it’s captured by one of the other branches, then those branches will have basically absolute ability and authority to do what they would. So, you have to keep them separate.

Again, Madison, Adams, others talk about it as well. So, really important. To provide for and to have independence in a given situation. You can foster that and increase that in terms of greater terms like lifetime appointments if you wanted. And then your system of removal – how hard it is to remove. The more you expand the term and insulate from review, the more you give a more difficult impeachment which is extremely difficult to meet, especially for judicial decisions, the more independence you create.

On the accountability side, as we mentioned, obviously if you have judicial elections, that gives accountability to the people. That can be used when important as a check on the judiciary. And you can see this play out in a lot of different contexts.

Several years ago the Iowa Supreme Court found a constitutional right to same sex marriage. And in the elections that followed three of the justices were voted off. So, it can give you accountability on the judges or justices in your state system.

A Few Examples

Scott Gaylord:

I think another good example since we’re here in the great state of Texas would be the tort reform battles in the 1980s and 1990s. A really good example where the people through the vote were able to influence and change the Supreme Court.

So, in 1988 Karl Rove was retained and he ran a campaign called Clean Slate 88. Democrats had complete control of the Texas Supreme Court. He started running candidates, pro-business candidates, that were in favor of tort reform in “€˜88. And in the next 10 years the court switched from exclusively Democrat to exclusively Republican.

Inspired by that, Alabama in 1994, some business interests retained Karl Rove to start doing the same type of thing in Alabama. And at the time, if anyone followed any of this, Alabama was known as “€œtort hell”€, a really popular nickname, real pro-business climate. Huge verdicts, Supreme Court case, BMW vs. Gore where a guy had, at most, four thousand dollars of paint damage, got a 4 million dollar verdict.

And that went up to the United States Supreme Court and the Supreme Court held, it was remitted down to 2 million. But the Supreme Court held that was a due process violation. That was so outrageous for punitive damages that it violated the Due Process Clause of the United States Constitution.

Inspired by these concerns, Karl Rove started running the same pro business tort reform. And I should mention, related that in terms of the legislature versus the judiciary, in 1987 Alabama had passed extensive tort reform through the legislature. Starting in the early 90s, the Democrat controlled Supreme Court struck it down, all the key features were struck down. So, you have BMW vs. Gore the one hand, the legislation being struck down and the other.

A Complete Flip

Scott Gaylord:

Between 1994 and 2004 complete flip of the Alabama legislature. The voters go to the polls. They’re concerned about the issue, think the courts have done it improperly, and go and hold their justices accountable at the polls. So, a significant way you can affect, and the people were able to affect and hold the judges accountable in that situation.

As I mentioned, partisan versus nonpartisan. A lot of times, again, you’ll hear people talk about judicial selection methods and say, “€œWell, the judiciary”€™s not supposed to be political.”€ Well, my view, and as we”€™ve talked about, I think it is. I don’t think– it’s just where are the politics? Where are they in the selection process and what difference can anybody make about those? How insulated is the process from accountability in a given situation?

And my view in terms of if you’re going to have elections, I favor partisan elections. I think that’s important information for voters to have. A lot of voters don’t have a lot of information at the time. And this is what we call sort of down ballot. We just had it in North Carolina. We had the Soil and Water Commission, important job, want good people for it, ten people nonpartisan.

Unless it”€™s my second cousin running, I don’t know anything about the Soil Commission, or at least most people don”€™t, right? And most people will punt, that is, most people won’t bother voting. What you have is what’s called the roll off down ballot. People just say, “€œHey–“€ And again, I think reasonably, say, “€œI don’t have information, so I won’t vote.”€

Bring A Speaker To Your Area


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It Makes a Difference

Scott Gaylord:

We see that in the judiciary as well. In non-partisan elections, you have much higher voter roll off. When you have partisan labels, people at least have some idea. If you have Scalia with an R next to the name and Ginsburg with a D next to the name, depends on your view, but it makes a difference, right? It makes a difference to have some idea.

Different judicial philosophies. It’s not exhaustive. You’d prefer people to do more research, but at least gives some foundation from which to make a reasonable determination as to a judge in a particular situation. So, I think it’s useful.

And also, since it increases participation, one of the main reasons that have elections is to get people involved in the process, right? They’re supposed to be there to hold folks accountable in a given situation. So, that accountability, we want more people to participate – not fewer, I think. And as a result, partisan elections would be helpful.

I”€™ll just mention quickly, ongoing– since, again, we’re in the great state of Texas, Texas has partisan elections, statewide elections, for their appellate courts. They’ve been involved in litigation under Section 2 of the Voting Rights Act. Those large elections have been challenged by plaintiffs saying that it dilutes the votes of minorities, so important challenge to a system. We don’t see that it”€™s going on in Alabama as well. A district court in Texas ruled in favor of Texas and the Alabama litigation is still ongoing.

I had the opportunity– I guess it was right about this time last week I was on the stand getting grilled by the opposing counsel, so that was kind of fun. As an expert in the case because the linkage interest is the linkage, the connection, between the jurisdiction of the court, which for the appellate courts is statewide, and the electoral base – should it be statewide elections or not? What are the different values and interests in that?

Ongoing Litigation

Scott Gaylord:

So, it”€™s important litigation ongoing. These will go up to the Fifth Circuit Court of Appeals, the Texas actions, I’m sure, will go up to the Fifth Circuit. And the Alabama action is extremely likely to go up to the 11th Circuit. And we’ll see what happens because these are challenges to methods of judicial selection, which I think are important.

The other thing I’ll just mention quickly is that judicial elections tends to legitimize the courts. The empirical research here shows that, again, the importance of legitimacy. Even the court was talking about that in Planned Parenthood vs. Casey – the plurality, the triumvirate, of *, Kennedy and O’Connor were talking about the importance of the legitimacy of the court in the eyes of the public and I think that is an important interest. Whether it was served by Planned Parenthood vs. Casey – a whole other discussion. We don’t have enough time for that one, but an important interest.

And what the empirical data indicates though is that elections can actually help reinforce legitimacy, that people get to participate in it. You’ll hear criticisms about judicial elections a lot about the amount of money spent, and there are certainly concerns there. I’m happy to talk about those when there”€™s questions.

But, actually, if you have more money spent, typically you’re going to increase voter participation because voters get information. Now, not every political ad or judge ad is going to be as good as the next one. Some are terrible, some are bad, sure. But it gives more information and people participate.

And also, then, they’re more able to accept decisions. What we see is that people are vested in their judiciary and feel like even if it’s a controversial decision or one with which they disagree they tend to support the judiciary more and have greater confidence in it from other types of state selection systems. And as a result there’s a lot of criticism, as I mentioned, of judicial elections.

And I think commentators Chris Bhanot has done a lot of empirical research on this. They indicate that a lot of it is just trying to undermine the system, trying to diminish accountability in certain ways and have these criticisms that really don’t have a lot of empirical evidence to back them up. The idea that we’re in crisis in states with judicial elections I don’t think it has manifested itself. But important to think about. Again, it’s not a one size fits all for all states. You need to consider your situation and what might be best for your state.

Merit Selection

Scott Gaylord:

If it’s not going to be the people, if it”€™s not going to be the executive, if it’s not going to be the legislature, what’s the other alternative? And the one that states have adopted would be a judicial nominating commission. That the progressive movement at the turn of the 20th century said, “€œYou know what the problem is?”€ Well, maybe a lot of problems, but one of the problems is, “€œThe Jacksonian movement moved it to the people, the people don’t know what the heck they’re doing, they’re doing a terrible job, we need to move this back to legal elites. We’ve got to get elites to select the judges and pick who’s going to rule in this situation.”€

And it’s talked about as merit selection. We can pick better judges. The average person just doesn’t know who they’re voting for, don’t know what counts as a good judge, “€œLet us decide for you.”€ Part of the problem with that is the threat of capture and bias in the process, right? How is this going to work?

The ABA has endorsed merit selection since 1937. If the ABA– I”€™m not initially against everything the ABA says or does, but just because their in favor of it doesn’t make me jump up and down and do cartwheels in favor of it. It makes me actually a little twitchy and a little nervous as to what’s going on with respect to their policies. And what we see is this idea of judicial nomination committees filled with experts pick people who think they *.

So, if you can get your folks on the committee you’re all set. But it”€™s whether you can or not. And they usually have capture by the bar itself. Just so you have a sense of what the Missouri Plan is. Missouri was the first one to adopt in 1940. Between 1940 and the early 70s, 13 states have adopted Missouri plans. Since then we haven’t had another state come online with– we’ve had modifications to Missouri Plans, but we haven’t had a new state adopt them.

A Couple Things to Think About

Scott Gaylord:

And here the governor is going to appoint, you have this commission. And, again, states vary widely as to how the commissions are constituted, who sits on them, how many people, how many nominees they’ve put forward, does the governor have to select one of the nominees, can the governor go back and ask for more – a wide range of opportunities and different things you can do. Then the judge will stand for a while– will sit for a while, and then stand for a retention election. As I mentioned, 13 states have these methods.

I think there’s a couple of things just to think about. One is the merit decision. What judge merits selection in a given situation? And two problems – one is we have to have the experts and there”€™s the idea of capture and bias. As of 2009, 16 of the 25 states that had it were dominated by the bar. As it turns out, different studies out there and I’ll show you a couple of them, the bar tends to lean–my left, that would be your right, I go this way for it– leans to the left.

So, again, if you lean to the left, that’s fine. But if not, you might be a little concerned at this committee. And again, this is all happening behind closed doors typically. There’s no access. These are unelected officials which is the second problem. The other idea is what constitutes a good judge. How do you determine whether this person merits selection?

And this is, again, engaged in a variety of debates with folks in North Carolina because we’ve had ongoing efforts to switch to a merit selection plan and I know the authors of these. One is the head of a bar in our state. The other is the Supreme Court, or former Supreme Court justice, really nice folks, good people. I’m a little nervous about an understanding heart for a judge – open mindedness and an understanding heart. Maybe they”€™re good features – I’m just not exactly sure what they mean by that.

And it makes me really, really, nervous to think that some committee behind closed doors is going to pick people based on an understanding heart. My sense of the judicial function doesn’t relate to that. Now, somebody else might, that’s fine, but I’m not sure why a committee behind closed doors should make those determinations for me or for my state in a given situation. So, just some of the problems that show up with respect to it.

Politics in the System

Scott Gaylord:

So, how you pick the merit, again, the unelected nature of these officials I think is problematic. So, there are politics in the system – how do you figure out where that is in the system? How do you change it? How do you hold people accountable for that? The members are selected in various ways. Again, a majority of them, majority of states, sorry, appoint people on the bar. Remember, if this is all about meeting experts, why do we have laypeople?

And you can imagine if, for me, if I sat on some board with medical experts and they said, “€œThis is the way to go.”€, given my medical background I would probably go, “€œOkay, I vote with them.”€ I mean, I could have lay people on the committee, but they don’t typically know that much more than we do as voters, so why do they matter? And if you default to the legislators, what you see.

Brian Fitzpatrick is at Vanderbilt Law School. He did a study with Minnesota, he has another one with respect to Tennessee. And it shows that the nominees tend to take on the political leanings of the bar and tend to be more liberal than the constituencies in general. In terms of how much money they give, in terms of their voting patterns in primaries and in elections. It shifts the bar to the left. And other studies– Brian Fitzpatrick”€™s worked on other studies to show that as well.

So, as a result, you’re just really giving over political alignment to the bar itself. And is that a good thing for the court and why? Again, if it’s political, why do they win? Because they’re the elites? They’re the experts? Worry about capture and, again, the accountability then becomes a problem in those situations.

How Do You Blame an Unelected Committee?

Scott Gaylord:

The other thing is too, since the governor has to pick one of those, even if you don’t like the nominees, you can’t do– you could try to punish the governor for doing it, but the governor is just going to say, “€œHey, I was handcuffed. I’ve got three nominees. I had to pick one. This is the best of the junk I was given. Don’t blame me – blame them.”€ And then how do you blame an unelected committee? You don’t. You can say things, but it doesn’t really change anything. So, really the problem, I think, with the accountability in that front.

Retention elections, as it turns out, studies show it’s really a de facto lifetime appointment – 98.2 percent are re-elected. So, you have really slim chance of getting anybody.

Again, incumbency is a huge advantage. If you’re the incumbent, you’re happy, “€œRe-elect Judge so-and-so”€, that’s good on a banner, that’s good and it helps you. But at least it’s some realistic chance of getting an incumbent off. Whereas retention elections, it’s not in any given situation. So, it sort of cloaks the thing in some type of legitimacy, but really doesn’t give it.

Just two more things quickly. Transparency matters. So, the more opaque the processes the less you can have accountability. And the problem is the more open it is it makes it difficult as well. Because then candidates may not come forward.

If everyone’s going to know, like, “€œI don’t want my firm to know I’m running for a judgeship. I’m trying to get a judgeship, I may not want my clients to know.”€ Reviewers may not want to know, they’re not going to give an honest appraisal if it’s going to be public information. Because I’m an attorney, I’m going to have to show up in front of this judge sometime down the road, so I might not want to do it either.

How Can the Problem Be the Solution?

Scott Gaylord:

So, just keep in mind– it”€™s now really two more things and I’m done– to the extent you have elections, if elections are the problem, how can they be the solution under the Missouri method? Missouri says you can’t have elections in Missouri Plan states and advocates. You can’t have elections because elections are terrible, horrible, and bad. And now we’re going to give you a retention election that really doesn’t give accountability at all and somehow that’s supposed to make it better.

I don’t think that’s true. I think, in fact, it exacerbates some of the problems with elections. And the only other thing I”€™ll just mention, as I mentioned in the beginning of the program, the quality of the studies show there’s really no difference in quality between and among judges across. That’s usually invoked under merit selection, but there really hasn’t been any.

So, a lot going on, a lot of different issues there. I encourage you to think carefully about what’s going on in your state and see how you might be able take steps to help prove that. My time’s up, so thank you very much. I hope you have a great rest of the day.


Thank you, Scott.

Judicial Reform Part 2 – ProFamily Legislators Conference


Well, friends, you’ve been listening to a presentation from the ProFamily Legislators Conference. That was Scott Gaylord who you were just listening to. David Barton at the beginning of that presentation which we shared yesterday. And both of those pieces of the presentation are available today at our website. So, go to WallBuildersLive.com, click on the archive section, you can get both programs, and then you can share that with your friends and family.

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