An excellent article in the NCSC Publication Court Trends, written by Chief Justice Nathan Hecht of Texas and Illinois Supreme Court Justice Thomas Kilbride of Illinois, includes timelines and listings of the spread of the Commissions movement. It shows the movement starting in one place, Washington State, and accelerating in its spread to 34 states, with Puerto Rico, Oklahoma and Arizona joining the list in 2014. Financial support from the Public Welfare and Kresge Foundations for support work has played a big role in this success story.
This wonderful story does however raise two questions: Are there any good arguments left for not having a Commission, and what can be done within the community to help the “not yet” states become “yes” states? (Disclosure, I work in various ways with NCSC and the ABA on supporting expansion of Commissions, but these opinions are totally and completely my own.)
Some of the arguments I have heard against commissions are as follows:
We already work well together and do not need a Commission.
It may well be that the players — court, bar, community based legal aid — are indeed working well together already, but that is not the right question. The question is whether more might be done with the additional structure of a Commission. Many states have found that the convening authority of the state supreme court, using the tool of a Commission, has brought in other players such as the private sector, legislators, and administrative agencies. Such states should look at all the Commission acheivements and ask themselves whether they might be able to do more with a Commission.
We do not want to put ourselves at the political mercy of our Supreme Court.
It is certainly true that some state supreme courts have become more politicized, and that on occasion, there is a correlation between political alignment and views of access to justice, but more frequently successful Commissions have been able effectively to make the case that access issues transcend politics.
Moreover, a well structured Commission has the potential to provide a continuing and institutionalized voice and coordinating force for access regardless of changes in the political environment.
The groups are not on the same page, and there is no point in trying to get them there.
That is less an argument than a restatement of the challenge. The success and impact of the Commissions, so well documented in the Trends article, shows that it is worth the effort. Which leads to the next question, what can those in states with Commissions do to fill the gap in the other states.
It seems to me that the following would be useful:
- Increasing the documentation of Commission successes
- Using constituency networks to talk to those with decision-making authority about the advantages of Commissions
- Strengthen the national activities and coordination of the Commissions Network so that the advantages of participation become more obvious
- Gently asking friends in the “no” states why they are depriving those in the Commission’s Network states of their help and support.
Any other arguments against Commissions, and any more ways to move them forward?