Jul 09 2013
Recently, the Arkansas Republican Party revealed that it plans to set up a political action committee (PAC) called Americans for Judicial Excellence in order to get Republican-leaning judges elected. Johnny Rhoda, a spokesperson for the party, stated that before receiving support from the PAC judges will have to pass a screening test. This screening will require that judges profess loyalty to the party’s “principles” such that the party is assured the judges will not rule against those principles once elected.
According to Judge David Stewart, the retired executive director of the Arkansas Judicial Discipline and Disability Commission, this kind of politicization of the judiciary compromises judicial independence. He fears that difficult court cases can be influenced by a judge’s concern with electoral campaigns and wind up being incorrectly decided.
Judge Stewart, who has campaigned and been elected three times, stated that, “The correlation between who contributes (and how much) and the leanings of the judge toward that contributor(s) when it comes to decision time is sometimes difficult to avoid. Anyone who tells you different is lying.” Judges, unlike politicians, are meant to act independently of public opinion, not reflect it. Judicial decisions should be based on the facts and the law, and whether or not judges’ decisions are actually influenced by campaign contributions or party endorsements, the mere appearance of impropriety undermines public confidence in the judiciary.
Judge Stewart was particularly troubled by the Supreme Court’s 2010 decision Citizen’s United v. FEC, which allows corporations to donate to political campaigns and, through the use of PACs, to obscure their identity and the amount donated. Specifically, he argued that the Court should have made a distinction between judicial and other elections. The bias that results from large contributions, or even the appearance, of bias, can lead to the public’s distrust of the judiciary.
The problems indicated by Judge Stewart are not unique to Arkansas. The problems he observed occur wherever judges are forced to campaign in order to be elected. For example in Pennsylvania, where all judges are elected in expensive, partisan elections, is vulnerable to the appearance of biased judicial decision making. However, the influence of campaign money on judges and judicial independence can be significantly reduced through implementing a merit selection process for choosing judges. Merit selection eradicates the need for judges to campaign and fundraise; instead relying on an impartial, bipartisan citizen’s nominating commission to select judicial nominees. Without the need to campaign, judges would be selected on the basis of their qualifications and would be free from the dangerous influence, or appearance of influence, by financial contributions from political action committees.