Dec 02 2014
On Tuesday, November 4th, Supreme Court justices in 22 states were on the ballot, with retention elections in 14 states. In many states, the judicial elections were expensive, negative, and bitterly partisan.
Perhaps the clearest trend to emerge from the 2014 elections is the increasing role of money in judicial elections. For television ads alone, $13.8 million was spent this year on state Supreme Court races. 59% of this money came from outside special interest groups or a political party.
In Illinois, a retention election turned into a “brawl between special interests and partisans.”
In Kansas, TV ads attacked two incumbent Supreme Court justices as being “soft on crime” and “liberal” for their votes in a case vacating a death penalty conviction, even though the court’s ruling was a bipartisan, 6-1 vote.
North Carolina just had their first judicial election without a public financing system. Not surprisingly, at $5.2 million spent, it was by far the most expensive Supreme Court election in the state’s history.
In Montana, likewise, record TV ad spending led to a race fraught by negativity.
In one Montana Supreme Court race, 87% of TV ad spending came from special interest groups outside of the state.
Retention elections should be about the qualifications of the judge to continue to serve on the bench. They should not serve as a proxy for a referendum on an unpopular ruling. Nor should they be a way for outside interests to drown out the interests of voters and their crucial decisions on whether a judge is qualified enough to rule fairly and serve ethically.
For candidates and incumbent judges facing retention, unbridled spending on judicial races creates pressures to avoid political attack or win favor of those with the money and connections necessary to get them elected. These are perverse incentives. A November 2nd New York Times editorial highlighted the issue, calling money and judges a “bad mix.” A 2013 American Constitution Society study found “a significant relationship between business groups contributions to state Supreme Court justices and the voting of these justices in cases involving business matters.”
Judges should be insulated from the political headaches of the other branches of government. Most judges don’t want to campaign — they would much rather focus on the cases before them. But with increasing spending by outside groups seeking to change the political makeup of courts around the country, judges are forced into the fundraising, speech-giving, coalition-building roles usually ascribed to legislators and executives.
The largest takeaway from the 2014 elections may be this: voters don’t want to treat judges like politicians. In each and every one of the races this month in which outside interests attempted to unseat incumbent judges by pressuring them politically, the incumbent kept his or her seat.
The message of 2014 is that money and politics don’t belong in the judicial arena. In the future, let’s make sure that judges in Pennsylvania and elsewhere get their jobs based on qualifications, not politics. And in retention elections, we as voters can and should continue to see past the transparent efforts of outside groups to oust qualified judges as retribution for unpopular opinions. After all, the best judges are those willing to forgo any considerations of how popular a legal decision may be. Rather, they focus on what is right by the Constitution and the laws of the land. That is the standard that citizens should keep in mind for our judiciary.