judgesonmerit.org

Gavel Grab alerted us to this story out of Washington. The Seattle Times reported that a liberal advocacy group, Impartial Justice, has increased efforts to get state Supreme Court Justice Jim Johnson off the bench. With Johnson facing a challenge in the upcoming primary election, the group spent over $40,000 this week on mailers depicting Johnson, the most conservative member on the bench, nestled in the pocket of a business suit. The groups spent an addition $10,000 on a similarly themed web ad.

Before reaching the bench Johnson represented a powerful state building association, which later contributed generously to his initial campaign for the Supreme Court. Many have criticized the justice for favoring past donors. Defending himself at a recent debate, Johnson claimed he had been given a “bum rap.” He noted that he recused himself from the only case involving the building association.  

Whether there is any truth to the allegations is beside the point. This story illustrates the way interest groups have succeeded in obtaining greater control over judicial elections. Some candidates such as Johnson may receive substantial financial support from big business. But groups like Impartial Justice signify that there is push back from the other side. Explains the Seattle Times,  

All of Impartial Justice’s money comes from a left-of-center group called FairPAC, first created during the 2006 Supreme Court election in response to money being spent by conservative groups that year. FairPAC has raised about $182,000 in the last month, with more than half of that coming from three labor groups: the Washington Education Association, the Service Employees International Union, and the Washington State Labor Council.

 Political players on the right and left side of the ideological divide use the same obvious tactic to further their goals—spend as much money as it takes to convince voters to elect “their” judge. With so much money flying around, it is difficult for the public to see judges as anything other than politicians in robes. Judges are not intended to be pro-big business or pro-labor. Even if the judges themselves do not possess a specific bias, the election process leads voters to feel otherwise

Several months ago, the nonpartisan American Judicature Society released a report showing the frequency by which lawyers, law firms, and litigants who have donated money to a Pennsylvania Supreme Court justice’s campaign, later bring cases before those justices in court. Of 82 civil cases in the 2008-09 session, 60 percent involved at least one lawyer, law firm, or litigant who had made a contribution.

Yesterday Lancaster Online reported that Inside Story has re-analyzed the data collected by AJS in an attempt to determine whether campaign contributions have an actual effect on judicial decision-making. The results were inconclusive. Of the 82 cases, only 15 involved contributing law firms on one side and non-contributing law firms on the other. Contributing law firms won 11 of those cases.

Explains Lancaster Online,

When contributors win nearly three-quarters of such cases, the pattern suggests that contributions might affect judicial outcomes.

But there are several significant caveats.

Of the 11 cases that contributing firms won, eight were decided unanimously by the court. In those cases, judges who received money from law firms — and those who did not — voted together. They usually affirmed a lower court’s decision.

Other factors, such as the amount of the contribution and the actual merits of the case make it difficult to determine causation. Shira Goodman, Deputy Director of Pennsylvanians for Modern Courts said that while the study could not take into account all aspects of judicial decision-making, the public perception that money influences judges does significant harm to the court system.

It is really hard to attribute a judge’s decision to one individual factor, especially in unanimous cases.

The law is not set in stone. We can’t explain each individual justice’s reason or motivation for voting one way or another.

[But] perception does matter. People want to believe when they go to court that they had a fair hearing.

Samuel Stretton, an attorney from West Chester agrees. Last year he argued and lost a case before the Pennsylvania Supreme Court in which the opposing side had contributed a total of $36,000 to judicial campaigns. Stretton says he should have been informed of these contributions up front so that he would have had the opportunity to motion for recusal. Failure to do so “created a cynical view” of the system.

I’m not saying that it necessarily affects the outcome of a case, but it creates the appearance of impropriety, and an appearance of impropriety is not allowed for judges.

But the solution is simple: get rid of judicial elections. Says Goodman,

Get the money out of the (judicial selection) process altogether. Then you’ve taken away the foundation for the perception that judges may be biased.