judgesonmerit.org

Rick Hasen, renowned election law scholar and author of the Election Law Blog, wrote on the New York Times Room for Debate blog yesterday that the Citizens United decision is Bad News for Judicial Elections.

Today’s decision casts . . . aside . . . the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).

This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases.

We completely agree. In fact, in PMC/PMCAction’s press release yesterday, we made a similar argument:

Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

The simple solution is to change the way we select our appellate judges, taking them out of the campaign business altogether. Even without the inevitable flood of corporate spending on elections to come, far too much money is being spent on judicial candidates from lawyers, businesses, and political parties – the very groups that appear in court the most. Judges should be selected based on judicial ability, as in a Merit Selection system, not based on campaigning or fundraising ability.

For other takes on what this decision may mean for judicial elections, see the American Judicature Society’s response here and the Justice at Stake coalition’s here.

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