Foshee & Yaffe
“He whose bread I eat, his song I sing.” (Ancient proverb.)
“The dignity and stability of government in all its branches, the morals of the people and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that.”
— Thomas Jefferson to George Wythe (America’s first Law Professor), 1776.
In The Appeal, by John Grisham, a jury in Louisiana renders a verdict against the out-of-state corporate owners of a factory that polluted a small town. The corporation appeals, which will take about two years. At the same time, behind the scenes, the company handpicks an ambitious young lawyer, puts him up for election to the state Supreme Court, mounts a negative campaign against a sitting Supreme Court justice, and gets its man on the Court in time to cast the deciding vote in its appeal. Guess how he voted. “He whose bread I eat, his song I sing.”
This couldn’t happen in America, could it? Unfortunately, yes. In West Virginia a few years ago a huge mining company had a big lawsuit against it. The company donated, through various channels, something like $3,000,000.00 (tres millionero dolero, amigas) to an election campaign for its hand-chosen candidate, who won. The newly-elected Justice of the Supreme Court of West Virginia refused to withdraw from the case and declared that the itty bitty donations of all those nice folks in the coal company wouldn’t influence his decision in the in the slightest fraction of a twitch.
Yeah, right. Guess how he voted. Thank goodness he wasn’t in the slightest influenced by the three million in donations. “He whose bread I eat, his song I sing.”
This couldn’t happen in Oklahoma, could it?
Well, it already did. We have a Judicial Nominating Commission in Oklahoma because three of our Supreme Court justices were convicted of taking bribes in the middle 1960s. To fix the problem, the state legislature established the Judicial Nominating Commission. District Judges are still elected by popular vote, but all appeals court candidates are vetted by the Commission, which is non-partisan and has 9 lawyers and 6 non-lawyers from all over the State. They recommend three of the applicants to the Governor, who chooses from the three qualified candidates. Since the system was implemented, we have only had ONE appellate judge who had to be removed from office, out of over 350.
Now the State Chamber of Commerce wants to take us back, and I mean WAY back, like the Wayback Machine in Rocky and Bullwinkle. They propose the following changes:
1. Statewide judicial elections for all appeals court judges;
2. Term limits of 20 years for all judges;
3. Judicial retention ballots changed to 60% instead of 50% for retention; and
4. Senate confirmation of all appeals court appointments.
Let me ‘splain some things to you that you already know.
1. A contribution to a politician is a bribe. The larger the contribution, the greater the influence you have.
2. The United States Supreme Court has ruled that contributing money to political campaigns is “political speech”.
3. The Big Supremies have also held that corporations are “persons” entitled to First Amendment protection of their “free speech” right to contribute unlimited amounts to political campaigns.
4. Therefore, we are nearing the legal tipping point in which whoever has the most money can buy the judiciary.
Who would want such a thing? Why, the ones with the most money, of course!!
Which brings us back to Oklahoma and the State Chamber of Commerce. The State Chamber has a Committee on Lawsuit Reform. The Chairman of the Committee is Mark Nichols, Koch Industries, Inc.
Huh? What did I just say? Where did THAT come from? How did an executive of Koch Industries, Inc., become an expert in “lawsuit reform”? Because, if you follow politics, the Koch Brothers are fantastically rich, Oklahoma based, retrograde conservative, huge political donors and often involved in very high-stakes litigation.
All of a sudden the story has three of the four elements: money, power, and greed. The only thing that’s missing is sex. I bet we can work that in there somewhere.
In 2009 the Oklahoma State Legislature passed the “Omnibus Tort Reform Bill”, which I call the “Drunk Driver’s Relief Act.” I watched the debate on the bill in the State Senate. A Senator was explaining to the Chamber why the bill was unconstitutional. The “Majority Whip”, the second-most-powerful man in the Senate, responded: “It is not our job to pass legislation that is constitutional.”
I’m not going to say that I always obey the law, and sometimes I think the laws are wrong. However, I have a deep love for the federal and state constitutions. It was shocking to me that a State Senator cared not whether the law he was forcing through the Senate was hypocritically unconstitutional. They passed it. The Governor signed it. A year or two later it was held unconstitutional by the Supreme Court of the State of Oklahoma.
Are you beginning to see the connection? All these laws that protect the wealthy and the insurers and take away the ancient common law rights of the common man were invalidated by the state Supreme Court. Our Supreme Court, impervious to the political debates and the public mood, examined the Bill and found that it violated the Oklahoma State Constitution.
To run an effective state-wide campaign in Oklahoma costs at least $1.5 million. If our appellate judges have to participate in electoral politics, they will have to spend half of their time raising money, and they will have to have their ears open and contribution cards out when the big donors come calling. They will become politicians, bought and paid for by their biggest donors. They will not like it, but they wouldn’t be able to help it. Instead of an independent judiciary, we would go back to justice for sale.
These “reforms” will be on the agenda when the Legislature comes back into session in 2014. Forewarned is forearmed, dear readers.