Columnist Fitzpatrick says R.I. judicial selction process needs transparency

Roger Williams University law Professor Michael J. Yelnosk said he heard a lot of great stories as he was organizing a Nov. 13 symposium on how Rhode Island picks state judges.

But some people swore him to secrecy and others said “if they told me the truth they’d have to kill me,” he said, drawing laughs at the outset of the event. He said Senate President M. Teresa Paiva Weed (who’ll be a Roger Williams University adjunct professor in the spring) didn’t respond to his invitation to take part in the symposium. “And she wasn’t the only legislator who would not do so,” he said. “So my one regret is we have no representation from the General Assembly today.”

Also, a commission refused to grant continuing legal-education credits for lawyers attending the event, although lawyers received credits for listening to actor Richard Dreyfuss talk about civics education, Yelnosky said. (A spokesman said the event would have qualified for half a credit if it included 10 more minutes on relevant law.)

“You get the sense that some people would rather not hear about what’s happening in judicial selection,” Yelnosky said, calling the 50 people who did attend “the few, the brave, the retired, the tenured and the residing outside the jurisdiction.”

While no Assembly members participated, some panelists echoed the tired, predictable arguments you hear from those in power: That judicial selection should be more secretive, that critics (such as Common Cause) are elitist, and that political involvement and ties shouldn’t disqualify judicial candidates.

That last argument precisely misses the point, which is that you shouldn’t have to know a guy at the State House to become a judge. Panelist Alan S. Flink, a Common Cause board member and former Bar Association president, gets it. “Should people involved in politics be excluded? No,” he said. “Should everyone else be excluded? No.”

Panelist Stephen J. Carlotti, former chairman of the Judicial Nominating Commission, does not get it. Last year, he tried to keep The Journal from seeing letters sent regarding finalists. On Friday, he reiterated that releasing letters might “discourage people who might write us with derogatory comments about applicants, being afraid that those comments would be made public and then they’d have to pay the price.”

But the attorney general said Carlotti’s interpretation of the law was wrong, and the letters he released contained no negative comments. Carlotti talked about the “cost to transparency,” ignoring the cost of secrecy, which erodes public confidence.

Carlotti said he wonders “if the system we have created is, in fact, the right system.” He said he’d prefer a system that gives the governor greater “flexibility” to choose judges who share his philosophy. The governor would pick finalists and a commission would analyze them — “not in public, by the way” — before releasing ratings, he said.

Whatever the merits of the system favored by Carlotti, stewards of the current process (favored by 69.9 percentage of voters in 1994) should recognize the value of openness — an openness born of scandal and disgust with how those in power exercised their flexibility.

The process does need improvement. The JNC needs its own staff, better office space and funding. As Carlotti said, “This is, in fact, a neglected institution.” And as Common Cause executive director John M. Marion said, officials need to stop undermining and attacking the process. “We have the skeleton of a good system in place,” he said. “And now we have to put some muscle behind it.”