“Do you want judges to answer to the law, or to campaign contributors and ideological groups?” That’s the question posed by a USA Today editorial on how judicial campaigns threaten impartial justice in America.
State judicial elections are changing. They’ve gone from sleepy affairs to hyperpoliticized battles for control of the judiciary. Fundraising by candidates in state supreme court elections has more than doubled in the past decade. The money is coming from campaign contributors on both sides of the aisle that are hopeful that they can place like-minded justices on the bench that will advance the party agenda.
This shouldn’t even be an issue. Judges are not supposed to have political agendas or constituents. Judges are supposed to rule impartially in accordance with the law, but the vast influx of money pouring into judicial elections is having a poisonous effect on the public’s perception of the judiciary. People see money changing hands, and they infer the guilty intentions of the donors. It’s not hard to see why the
public might think that campaign donations compromise a judge’s neutrality in the courtroom.
Pennsylvania is already ahead of the curve when it comes to outrageous campaign spending and politicized judicial elections. We can criticize other states,
but the Commonwealth will likely find itself in the same position this time next year when our own judicial elections are contested. It’s time for Pennsylvanians to think long and hard about the way we choose judges. Merit Selection would take judges out of the fundraising game and let them get back to a system where judges are chosen based on the strength of their qualifications, not their fundraising acumen.
“[R]etired Supreme Court Justice Sandra Day O’Connor noted two years ago, ‘the last thing you want to worry about (when you go to court) is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.’”
A recent blog compared NFL referees with courtroom judges. Both sides want the decider to be impartial and skilled. However, when judges are required to actively fundraise in order to successfully campaign for a
seat on the bench and special interest groups, lawyers and litigants who may later appear before the judge donate large sums of money,
how impartial are the judges?
This problem has ballooned within the last decade. In 1990, state Supreme Court candidates raised approximately $3 million. However, by 2000, some high court candidates raised more than $45 million. Further, some of these contributors are corporate special interests, expecting some sort of benefit for their contribution. A Center for American Progress study reported, “In courtrooms across the country, big corporations and other special interests are tilting the playing field in their favor.”
Although judges are supposed to be impartial, there are political movements across the country to oust judges that decide against political partisans. For example, a Pennsylvania Tea Party faction set out to defeat a few state Supreme Court justices who refused to uphold to voter ID law. In Iowa, one party, Iowans for Freedom is leading the call to remove Judge David Wiggins. He was involved in a unanimous ruling legalizing same-sex marriage. An opposing party, Justice Not Politics has emerged to protect the court system, merit selection and retention. They explain, “If politics and campaign money are allowed into the courts, justice will be for sale.”
Tags: campaign contributions
A recent editorial in the Daily Journal (Tupelo) explains that an independent judiciary should not have to campaign for contributions. Although the candidates for the Mississippi State Court election are all “honorable members of the
legal profession,” the fact that they have to raise money for their
campaign is unsettling. The amount of money that candidates raise is substantial; one candidate in the Central District has raised $375,000. His opponent has raised $290,000.
Some of this money comes from friends and colleagues expecting nothing more than an impartial judge; however, interest groups also contribute to judicial election campaigns. The problem with these contributions is that judges are supposed to be impartial, judging by the law, not by whether a specific interest group will donate to their campaign next time. Also, “[n]o interest group contributes to any candidate without some expectation that the candidate will represent its interests.”
Although upstanding judges will not decide cases based on interest group contributions, why have a system where interest groups might have a say? Even the appearance of special interest groups contributing to judicial elections should be avoided because it causes a lack of public confidence.
Under a merit selection system judges are not forced to campaign. Further, judges would not be pressured by special interest groups who contribute to campaigns with hopes of the law being decided in their favor. An impartial judge should be selected on merit, not on how much money one can raise.
Tags: campaign contributions
, impartial courts
, judicial elections
, Merit Selection
Pennsylvania’s judicial elections won’t be contested until next year, but if the elections currently underway in four other states are any indication, the Commonwealth could be in for a tumultuous time. A recent issue of Governing highlighted an article that draws attention to the hotly disputed elections taking place in four states around the country.
Florida, Iowa, Michigan, and North Carolina are in the midst of intense battles for control of the judiciary. Special interest groups on both sides of the aisle are pouring big money into state judicial elections, and partisan politics are playing a bigger role than ever before. State high courts are especially prone to nasty, embittered campaigns. Because the most politically charged issues are likely to reach state supreme courts, those courts are seen as the frontline in propagating partisan
If recent trends hold, Pennsylvania’s own judicial election experience will likely be similar. Pennsylvania has been one of the
most hotly contested judicial battlegrounds with campaign contributions surging in recent history. In 2007, four candidates spent a record-shattering $7.85 million to campaign for two open state supreme court seats. In 2009, two candidates spent $4.7 million for a single open seat making the 2009 election the most expensive supreme court race ever in Pennsylvania. There is no sign that the outrageous infusion of money will subside, and the practice is spreading to lower courts.
The vast amount of money in judicial elections is eroding the public’s confidence in the judiciary. Judges are supposed to be impartial and apolitical, but fierce campaigns and millions of dollars in party contributions are undermining that ideal.
As Pennsylvania heads into yet another judicial election season, it is crucial to reconsider the way that the Commonwealth chooses its judges. Merit Selection would take Pennsylvania out of the rat race and would get judges out of the fundraising business. Pennsylvanians deserve to have their cases and controversies decided by the most qualified judges, not the most qualified fundraisers with the longest list of contacts.
Shira Goodman, former Deputy Director of Pennsylvanians for Modern Courts, has published an article in the Drake Law Review exploring the ramifications of the overwhelming public perception that justice is for sale. Goodman’s article, “The Danger Inherent in the Public Perception that Justice is for Sale,” considers why this perception is pervasive, what consequences stem from its dissemination, and how these challenges can be addressed.
The public’s waning confidence in the impartiality of the judiciary stems from the judicial election process. This process requires judges to conduct campaigns and raise money in order to be elected to the bench. The public perceives that campaign contributions influence judicial decisions. Whether or not this perception is true, it has an impact on public confidence and is fueled by the fact that campaign contributors often appear before the judges to whom they have given money.
Lawyers and judges often try to dispel this perception by claiming that money has no effect on judicial decision making. “Claiming that campaign contributions do not affect judicial decision making and are not intended to do so has done nothing to mitigate the public perception that justice is for sale.” Because lawyers and judges are at the heart of the campaign contribution system that fuels
this negative perception, they lack the credibility to dispel it.
This lack of public trust undermines the very operations of the American judiciary. “Public trust in our courts is more than just good civics; it is necessary to the continued functioning of our governmental structure.” Without a
belief in judicial independence and impartiality, people are less likely to trust and follow the orders of the court.
The article concludes by offering a solution to these problems: replace judicial elections with Merit Selection. “To date, no state has found a way to solve this problem while continuing to elect judges in expensive, partisan contests. The solution is clear – eliminate money from the system and there will no longer be a question of whether campaign contributions affect judicial decision making. No one will have to wonder whether justice is for sale.” Merit Selection does just that – it takes money out of the equation and gets judges out of the fundraising business.
The opinion section
of philly.com has an interesting poll relevant to merit selection. When asked whether former Philadelphia Traffic Court Judge Willie Singletary’
A Minnesota editorial is calling on voters to pay attention to the judicial races featured on that state’s upcoming ballot. Three contested Minnesota Supreme Court races are competing with high profile legislative races (including the presidential campaign) for consideration.
Dan Griffith, an
attorney running against Chief Justice Lorie Skjerven Gildea for a seat on Minnesota’s Supreme Court, explained that judicial elections provide an important opportunity for voters to scrutinize the judges that will be deciding cases in the state. Griffith said, “We need to know who our judges are. They
work for us.”
Voter participation is crucial to judicial elections, and study after study shows that voter participation is low. The call to voters to take an interest in judicial elections is worthy. Voters in states that have judicial elections would be well served by taking the time to vet candidates, but voters rarely do that. Relevant information about candidates if often lacking, and many voters don’t know how to interpret the information that is available. This often translates into a tragic lack of voter turnout. Minnesota’s judicial elections are at least able to ride the coattails of the more prevalent elections in the state. Still, people often feel like, if they don’t know who they’re voting for, why vote?
Merit Selection offers a solution where the vetting is done by people who know what to look for in a judge. Nominating commissioners have the time, inclination, and duty to know judicial candidates and to recommend the most qualified to the governor who then nominates a candidate for confirmation by the legislature. Instead of rolling the dice on judicial elections, the people of Pennsylvania would be better served by a system that ensures that judges are chosen based on experience and a solid judicial record.
Letter to the Editor in the Philadelphia Inquirer by Philadelphia Bar Chancellor John Savoth calls the
suggestion that voters retaliate against judges for opinions they disagree with “an attack on the democratic process itself.”
The letter emphasizes the need for and importance of judicial independence and argues that judges must be free to decide cases based on the law and the facts rather than the current political climate or popular opinion.
The letter concludes:
In a democratic society, citizens and the media have the right to make reasonable and fair criticism of all public officials, including judges. But, as retired U.S. Supreme Court Justice Sandra Day O’Connor said, “Criticism is fine, retaliation and intimidation are not.”
We agree completely.