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We often talk about the money problem associated with judicial elections, but another flaw in the system is the affect campaigning has on what should be an impartial judiciary. A recusal controversy involving a West Virginia Supreme Court Justice highlights this concern. In a post on The BLT: The Blog of the Legal Times, Tony Mauro writes that Justice Menis Ketchum declined to recuse himself from a case that brings a direct challenge to a law involving a state cap on non-economic damages that Ketchum promised he would not vote to overturn. Ketchum’s statements on the law came during his 2008 election campaign:

Ketchum, when asked about the law, made this statement, according to local West Virginia media: ‘I will not vote to overturn it, I will not vote to change it. I will not vote to modify it.’

In refusing to remove himself from the case, Ketchum stated that: “I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal.” In this statement he did not deny that he made the campaign promise or that he possessed a predisposition regarding the issue. Instead, Ketchum asserted:

While I am predisposed to do just what I said during my campaign – that I will not vote to overturn, change or otherwise modify the MPLA caps – as a jurist I am required to look at all issues from a different perspective than I enjoyed as Lawyer Ketchum.

This issue is larger than whether or not this judge can separate his campaign promises and preconceived notions from his current role as a jurist to make a fair ruling. Judicial elections force potential judges into political roles because of the need to fundraise and campaign. When judicial candidates go on the record regarding issues that later come before them as judges, it creates at a minimum the appearance of preconceived biases. This undermines confidence in an impartial judiciary because the outcome seems fixed from the start. Judicial selection should not place future judges in such a compromising position.

Former United States Supreme Court Justice Sandra Day O’Connor minced no words in describing her opinion about judicial elections to the American Bar Association Journal: “They’re awful. I hate them.”

Justice O’Connor’s comments came in an interview following her remarks to the ABA’s Summit on Fair and Impartial Courts. During those remarks, she warned:

“The public is growing increasingly skeptical of elected judges in particular.” She was referencing surveys showing that more than 70 percent of the public and more than a quarter of judges are considerably more distrustful of their judges than they have been in the past.

Public trust and confidence in courts and judges is the foundation on which our justice system rests. The confidence is increasingly undermined by expensive, divisive partisan elections.

Writing on the Blog of Legal Times, Tony Mauro noted that Justice O’Connor “voiced concern that the public will view judges as “just politicians in robes.”  But judges are different from other elected officials and play a very different role in our system of government.  Here’s the problem: If we continue to treat our future judges like other elected officials until the moment they take the bench — including requiring them to campaign and raise money like other candidates — how do we guarantee that judges can succesfully fulfill their special role?