Critic of Supreme Court justice sees good reason for appointing judges

Nevada Supreme Court Justice Nancy Saitta is about to get a scathing critique, as a law review article for the prestigious Northwestern Law School in Chicago examines her election in 2006 and calls her unqualified for the job.

While on the District Court, Saitta “was the most reversed District Court Judge in Nevada and was an extremely inefficient lower court judge who had not published a single opinion or academic article,” wrote Bronson Bills, a law clerk for a federal judge in Utah.

“Moreover, not only was Saitta unqualified for the Supreme Court, she was tied to several wealthy special interest groups who sought to oust Justice (Nancy) Becker.”

Bills was a law clerk for Saitta during the last seven months of 2006 and a former law clerk for Senior District Court Judge James Brennan. His article “A Penny for the Court’s Thoughts? The High Price of Judicial Elections” is scheduled to appear in the Northwestern Journal of Law & Social Policy in January.

Saitta declined to comment on the specifics of Bills’ article, although I e-mailed the quotes above to her.

She e-mailed back: “I simply have no way to provide any meaningful comment on a article that I have not read.”

Bills’ research concluded the Supreme Court race between Saitta and Becker represents the first major judicial election in which an incumbent judge was ousted on the basis of a single, unpopular civil decision. Justices have lost elections based on their handing of criminal cases, but Bills said it’s historic to be unseated because of a civil case.

(I have to disagree with him that it was a single civil case. Justice Becker also gained enemies and bad press from ruling on an eminent domain case.)

But the major case that drew the wrath of the Las Vegas Review-Journal editorial page was Guinn vs. Nevada State Legislature. The 2003 case involved a budget stalemate that prompted Gov. Kenny Guinn to ask the justices to decide whether a two-thirds majority of the Legislature was necessary to pass the budget bills, or just a simple majority. The court ruled a super-majority was not necessary because of conflicting language in the Nevada Constitution. Six of the justices signed the opinion saying the constitutional requirement to fund education outweighed the super-majority requirement approved by the voters.

After the opinion, the Legislature managed to pass the budget bills with a two-thirds majority anyway.

Bills pointed out that the opinion was legally justified, noting that the U.S. Supreme Court rejected an appeal.

The anti-tax Review-Journal editorial page blasted the justices repeatedly. Two of the six who signed the opinion, Bob Rose and Deborah Agosti, decided not to run again. Becker was the first to face the voters.

Ginned up by media criticism and financial support from Becker’s foes, Saitta challenged the incumbent justice and won.

Bills called it “an election which will likely go down as one of the more embarrassing and judicially debasing State Supreme Court elections in our nation’s history.”

“Qualifications did not matter in this election as Saitta put the entire focus of the election on the Guinn case,” Bills wrote.

Bills argued (and I agree with him) the Becker-Saitta race is compelling evidence that electing judges is a mistake. He suggested the Legislature amend the state constitution to eliminate judicial elections and create an appointment system. The governor would appoint and the state Senate would confirm. Judges would serve one 12-year term under this proposal, and then they would be out.

By eliminating the retention vote used in the Missouri plan, the money scramble is also eliminated.

Other merit selection ideas are also on the table, but Bills’ proposal is worth a look.

Review-Journal Editor Thomas Mitchell is gagging as he reads this column because he is a strong advocate of open elections. But I’m despairing of a few judges elected recently, and I’m open to a fix.

What’s the difference between a president nominating a judge confirmed by the U.S. Senate and a governor nominating a judge confirmed by a state Senate?

One’s a lifetime appointment, but that’s a system that seems to have worked much of the time without violating the constitutional separation of powers.

And there’s always the impeachment process.

Jane Ann Morrison’s column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275.