Apr 22 2014
There is no doubt that when a big money donor exchanges their financial support for a judicial candidate’s political loyalty, “actual bias or the appearance of bias comes into question,” according to Judge David Stewart, retired executive director of the Arkansas Judicial Discipline and Disability Commission. Judge Stewart cites the example of the recently formed Americans for Judicial Excellence PAC, whose mission is to elect judges who represent the policy positions taken by the current conservative Republican Party majorities in the Arkansas legislature. Only after judicial candidates have sworn fealty to the Republican Party’s core principles will they be invited to speak to the PAC and receive their endorsement and hefty monetary contributions.
A judge’s decision-making should be unbiased, based on the law and facts before them, not the political platforms of any party. By requiring political allegiance in exchange for campaign contributions “not only does the judge become subject to actual impropriety, [but] the appearance of impropriety can be huge.” Regardless of whether the judge is actually biased, how can the public have any “faith that the judge in question can be trusted to make a decision independent of the influence of money, or his quirky biases heretofore exhibited[?]” Simply stated, it shakes the public’s faith in the independence of the judiciary. For that reason alone, judges cannot and should not be subject to the political whims of big money donors.
The grave concerns raised by Judge Stewart are not isolated to Arkansas. In a post Citizens United v. FEC and McCutcheon v. FEC world, where donors can spend enormous amounts of money to support the “right” judicial candidate, these same problems are lurking just around the corner in any state where judicial elections are held. States like Pennsylvania, which have partisan judicial election systems, are at the greatest risk of a rising lack of public confidence in an independent judiciary due to campaign contributions. These expensive and often messy partisan judicial elections shift the focus away from putting the most qualified candidate on the bench, but instead places it on who can be the most effective fundraiser and campaigner.
Merit selection is a commonsense approach to minimizing the negative effects of campaign contributions in judicial selection. By selecting our judges through merit selection the need to stockpile donations and amass small fortunes from PACs becomes moot. Instead of a heated campaign, the likes of which we generally expect to find between legislative or executive candidates, merit selection provides for an independent bipartisan citizens committee that evaluates and recommends the most qualified candidates to the governor for nomination. Through this process, merit selection ensures that the seats on the bench are filled with candidates who are most qualified and not simply those with the biggest wallet. This helps to restore the public’s confidence in an independent judiciary capable of rendering objective and unbiased decisions, free from the taint of campaign contributions.