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Gavel Grab reported today on a story out of Texas predicting an end to judicial elections in the Lonestar state. Writing for the Texas Tribune, guest columnist David Schenck suggests that a recent trio of U.S. Supreme Court rulings undermine the perceived legitimacy of judicial elections:

Republican Party of Minnesota v. White (2002): First Amendment bars certain restrictions by states on what judicial candidates say while running for office.

Caperton v. Massey (2009): Due Process may forbid a judge from hearing a case where a litigant had “a significant and disproportional influence” (read: spent lots of money on that judge’s campaign).

Citizens United  v. FEC (2010): Corporations and Unions are now able to spend directly from their treasuries to make independent campaign expenditures in direct support or opposition of political candidates.

So what’s the problem? Read together, these cases highlight the irreconcilable contradictions inherent in judicial elections. Under White, judicial candidates may speak freely on issues that may later arise before them on the bench, tainting the perception of fair, impartial decision-making from the start. On the other hand, Caperton plainly lays out that even the appearance of impartiality due to large campaign contributions may violate due process. So money compromises the appearance of neutrality while the judge’s prior statements on the issues do not? But then most recently the Court opened the door to even more money in elections, including those for judges, as the Citizens United decision will result in new sources of cash in hotly contested judicial elections.

In poll after poll the public has expressed doubt over the propriety of judicial campaign contributions, and the apparent conflicting message from the highest court in the land does little to alleviate these concerns. One thing we know for sure is that the public is uncomfortable with the idea of future litigants spending money to get judges elected.

According to a poll conducted by judicial watchdog Justice at Stake, 84% of Americans believe that judges should not try cases involving parties who have contributed money to their campaigns. 74% feel that contributions influence judges’ decision-making.

Yet despite clear skepticism from the public, many states, including Pennsylvania, continue to elect their judges in contested partisan elections that require serious fundraising.

Pennsylvania should take note of Schenck’s prediction:

We should…move to some form of merit-based selection for our judiciary while there is still some hope of retaining the public’s confidence in what the founders designed to be the non-political branch of government.

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