Constitution Daily

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The problem with judicial elections

November 4, 2013 by Lincoln Caplan


Few states have elections for judges scheduled this week on Election Day, according to Judgepedia, so there won’t be a lot of attention on Tuesday to the robust evidence that the torrent of money in politics is taking a toll on American justice. But that is a grave, mounting, and bipartisan problem, as retired Justice Sandra Day O’Connor (appointed by the Republican President Ronald Reagan) has explained in her admirable campaign for the O’Connor Judicial Selection Plan.


Courtroom_United_States_CourthouseThe plan proposes balancing the need for fair courts with the need for them being accountable, by having a nonpartisan commission pick candidates based on merit for openings on the highest state court and having the governor appoint judges from those candidates. After a term of, say, seven years, a state’s voters would decide whether a judge should have a second term in nonpartisan, yes-or-no retention elections.


Judges must make decisions that are impartial and are seen to be impartial. The election of judges in 22 states on their highest courts requires them to be politicians, seeking votes and in most cases money to campaign for votes. (An additional 16 states now have retention elections for judges.) As a result of those elections, justice is being degraded by politics. The flood of money in politics is undermining the state judiciary’s fairness, impartiality, and independence and its reputation for making decisions that reflect those essential qualities.


In June, the American Constitution Society published an academic study by Joanna Shepherd, an economist on the faculty of the Emory University School of Law that strongly supported this conclusion. Here is how the study’s executive summary explains the work and its conclusions:


“Over the past year, a team of independent researchers has collected and coded data on more than 2,345 business-related state supreme court published opinions, which includes opinions from all 50 states during the years 2010 to 2012.The dataset was merged with over 175,000 contribution records that detail every reported contribution to a sitting state supreme court justice over the same period, or dating back to the last time the justice ran for reelection. Data have also been collected on related factors such as individual justice characteristics, ideology, and data about state processes to ensure a complete and robust empirical model for testing and analysis. The data confirm a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.”


Last week, the Brennan Center for Justice at the NYU School of Law released its latest study about the amount of money being spent on judicial elections, this time about spending in 2011-2012 (the nonprofit groups Justice at Stake and the National Institute on Money in State Politics contributed to the study). The headlines in the study about its conclusions are disturbing: “Television spending hit record highs; independent spending escalated; national politics invaded judicial races; costly races continued around the country; and merit selection faced new challenges.” The study underscores why a link between funding from special interests and decisions of courts favoring those interests is found in many of the highest state courts around the country.


The most money in 2011-2012 was spent in four states where the courts are closely divided between conservatives and liberals: Michigan ($13 million), Wisconsin ($5.1 million), Florida ($4.9 million), and North Carolina ($4.5 million).


I have followed and written about judicial elections in Wisconsin in recent years, since elections of the justices on the state supreme court were transformed in 2007 into auctions and the reputation of the court plummeted from outstanding to sometimes dysfunctional.


Almost three-fourths of the spending in Wisconsin was by interest groups with clear agendas, either conservative or liberal. And almost all of that was for T.V. ads—8,685 ads paid for by interest groups. Many were nasty, personal, and misleading about the candidates. They reflected the bitter divide on the court that has been well chronicled by media in the state.


The Brennan Center report is careful to acknowledge that there is some good news about state court elections, like strong recusal rules in some states that “promote accountability and help ensure that special interests cannot buy justice.” Those rules require a judge to disqualify himself if his impartiality can be questioned, even if only because of the appearance of him possibly favoring one side in a case.


But the Wisconsin Supreme Court demonstrates what can happen when money in judicial elections leads to a majority that believes their duty to voters is greater than their obligation to be impartial and appear impartial. By 4-3, the court gutted the state’s recusal rule. It decided that campaign contributions to a justice, or independent spending in support of him, don’t require the justice to disqualify himself from a case involving the contributor or spender.


The court’s majority redefined fairness so that it no longer includes a guarantee that a justice’s vote cannot be bought. Elections are integral to the Wisconsin judicial system. Money dominates the most important elections. The state’s highest court embraced the fiction that money is not a problem in politics or for the court, but the decision to gut the state’s recusal rule makes clear that money is a grave problem for the court as well as for politics.


Lincoln Caplan is a visiting lecturer in law at Yale Law School and the author of “The Solicitor General and the Rule of Law,” among other books.


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