Louisville Magazine

MAR 2012

Louisville Magazine is Louisville's city magazine, covering Louisville people, lifestyles, politics, sports, restaurants, entertainment and homes. Includes a monthly calendar of events.

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the Galt House where two (now-deceased) high-court justices — the erudite Louisvillian Charles M. Leibson and mountain-man Dan Jack Combs — debated the issue. Te audience of lawyers expected the intellectual to trounce the good ol' boy, but it didn't happen. Some thought Leibson pulled his punches because he was up for re-election and wanted to avoid voter backlash. "Dan Jack made a great argument that the people of Kentucky had the right to elect their judges — they want to — and they will never stand for any type of system that would put commissions or politicians in charge of appointing judges," Johnstone says. "After listening to him, I thought that despite what you think the merits of appointment are, I don't think the voters of this commonwealth would give up the right they have now, through the Constitution's Judicial Article (the result of the '70s reforms), to vote for judges, trial or appellate. Whether that's best is subject to debate, but that may be the reality." election to the Supreme Court, died from cancer in 2007. According to Goyette, the effort is being resurrected by several Bar Association members. So O'Connor's June visit is part tactical. Johnstone's own views have evolved. "With the way judicial elections are run these days and how much it costs to run one," he says, "I have modified my view to the point that I think we should consider appointing judges — not at the trial level but at the appellate level. I think it's important that our appellate judges are well qualified to be where they are since they are the reviewing judiciary of the trial judges." Snyder favors something along those lines — he's also less concerned with the trial courts, because they're not making law — citing expensive races in Texas and Ohio, where special interests lined up behind candidates based on vested interest, along with a 2002 U.S. Supreme Court decision that lets judicial candidates express their views on issues (Republican Party of Minnesota v. White). "People are not raising money for the Supreme Court of Ohio "I don't think the voters of this commonwealth would give up the right they have now, through the Constitution's Judicial Article, to vote for judges, trial or appellate. Whether that's best is subject to debate, but that may be the reality." — former Supreme Court Justice Martin Johnstone Louisville attorney Sheryl Snyder says the discussion fired up again a few years later when Don Burnett, who was dean of the U of L law school, gathered a group of attorneys, judges and former judges to study the issue. Supreme Court Justice William McAnulty planned to organize a commission to push a constitutional amendment to implement merit selection. But Burnett accepted a deanship at the University of Idaho, and McAnulty, the first African-American to win because they like the people running," he says. "It's their views, and now their ability to make commitments. Both sides saw ideology impact the race. I think that is very troubling and gives the average voter the notion that justice can be bought. Enough of our institutions don't have public confidence. If the courts lose that, they lose their imprimatur. "When judges are elected, I think there's a risk that elected judges are ideological. Even though elections are supposed to be non-partisan, there are still partisan alliances. Everyone knows in certain races who the Republican and Democratic candidates are." Fleischaker, the city's most prominent First Amendment lawyer, disagrees with his good friend Snyder, who has represented governors from both parties and also helped pass merger in Louisville and gubernatorial succession. Despite some challenges, Fleischaker says, Louisville and the entire state have respectable benches. "Te problem is not election of judges, but that some judges aren't as experienced in the practice of law," he says. "Tey may have been court clerks or assistant county attorneys and have never practiced major cases until they get to be judge. But there's no guarantee that wouldn't happen otherwise. I don't think you end up with a better pool of prospects if it's an appointment process, and the problem then is you end up with a small number of people who can be appointed. "Ten you get into real politics. Who's the county attorney? Who supported me? All sorts of problems we don't have now. Will Democrats only appoint Democrats? If so, only contributors? At what level? What is their position on, for example, crime? All of those things play a role." T "Te problem is not election of judges, but that some judges aren't as experienced in the practice of law," says attorney Jon Fleischaker. [64] LOUISVILLE MAGAZINE 3.12 he pro-appointment contingent's concerns run a few different ways. Tey say judges should be free to make hard decisions, unswayed by public opinion. Without federal judges who didn't have to worry about the popular vote, they say, the civil-rights movement would have had no leg to stand on. More recently, they see special interests becoming increasingly involved in judicial races. Tey point to Iowa, where three Supreme Court justices, appointed through the merit-selection process and up for voter retention in 2010, were turned out after conservative out-of-state interests poured more than $800,000 into the campaign to oust them. Te justices had joined a unanimous Supreme Court decision that ruled Iowa's ban on gay marriage unconstitutional. CONTINUED ON PAGE 80

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