The Law School Magazine  ·  Spring 2008 : Features

Judicial Elections: Will They Destroy the Third Branch?

By - Spring 2008
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As the 2008 presidential elections hit media and pundit overdrive, many Americans have given little thought to other candidates who will appear on the November ballots.  Increasingly, judicial candidates are facing heated, costly, and partisan battles for a spot in the state judiciary.  Today, the United States remains the only modern democracy that elects
a substantial portion of its judicial branch.  Between 2000 and 2004, judicial candidates raised a record-breaking $123 million, much of which was used to fund the television ads that ran in

every four of five state supreme court races.  In 2006 alone, judicial candidates raised more than $34 million.  On average, a judicial candidate needs to raise well over a half million dollars to stay competitive, with many races requiring more than $1 million.  In addition, since 2000, outside third parties have poured cash into advertisements or propaganda that either support or call for the defeat of a specific candidate.  Advocacy groups, including one entitled Jail Accountability Initiative Law (JAIL) 4 Judges, have sprung up with the sole purpose of influencing the election and retention of those serving in state judiciaries.  But, is all this attention and money good for the judicial system and the American democracy?

All Rise discussed the question with two prominent justices: former U.S. Supreme Court Justice Sandra Day O’Connor and Ohio Supreme Court Chief Justice Thomas Moyer ’64.  Justice O’Connor has dedicated much of her retirement to championing the issue of judicial election reform.  Chief Justice Moyer, who has successfully run for reelection three times, currently chairs the Task Force on Politics and Judicial Selection for the Conference of Chief Justices.

The Current Environment

Although judicial elections were once described as exciting as a game of checkers played by mail, today they are anything but.  While there have always been occasional hotspots and academic discussions of reform, there is now a growing national trend of more money, more partisanship, and more third-party involvement.

Every election cycle, the amount of money spent on judicial elections increases by an ever greater percent. But, the troubling part for some is not how much money is being spent, but where that money came from.  In the past, judicial elections were criticized for being supported only by lawyers, and often lawyers from only one or two law firms.  However, in 2006 donors from the business community donated over $15.3 million, which is more than twice the $7.4 million raised by lawyers. In addition, conservative third-party interest groups pumped an additional $8.5 million into independent expenditure campaigns to support or oppose candidates.   While most of the attention is focused on state supreme court races, lower court races are not immune and are also the focus of more intense campaigning and fundraising. For example, in 2002 candidates vying for 43 contested trial court seats spent more than $16 million.

“My concerns about the increasing politicization of judicial elections are three-fold,” Justice O’Connor said. “First, I am concerned about the effect that ugly and noisy elections have on public perceptions of the judiciary.  A 2007 poll taken by the Annenberg Foundation found that voters in states that elect judges are more cynical about the courts, more likely to believe that judges are legislating from the bench, and less likely to believe that judges are fair and impartial.  Second, I am concerned that competent and qualified candidates will opt not to become judges because they lack the political skills or desire to go through the knock-down drag-out fight that judicial elections are becoming.  Finally, I am concerned that such elections will compromise the independence of the judiciary and judicial accountability to the law.  If judges become accountable to popular opinion rather than the rule of law, the judiciary will lose its unique charge to uphold the law even at times where it might have become unpopular.  This undermines a critical element of our three-branch system of government as intended by the Framers of the U.S. Constitution and in every state.”

Few judges recuse themselves from cases involving parties who contributed money to their campaigns.  In 2005, the U.S. Supreme Court refused to force Illinois Supreme Court Justice Lloyd Karmeier to recuse himself from a case involving State Farm Insurance Company despite having received more than $350,000 in campaign contributions from the company and its employees just months earlier.

Proponents of judicial elections argue fervently that elections hold judges accountable and give citizens the ability to select judges with values and a constitutional philosophy similar to their own.  As hotbed social issues, including abortion, gay rights, gun control, and the rights of criminals such as sexual offenders, end up in the court system, the more interest is generated in judicial elections by the general public.

“The term ‘legislating from the bench’ is probably meant to describe when a judge does not follow the law in deciding a case, but rather misrepresents the law so that the case comes out in a particular way,” Justice O’Connor said.  “I believe that — in the overwhelming majority of cases — our nation’s judges do their best to apply the law as it is written to the issues that come before them.  When a judge is applying the law to a socially sensitive area, there are bound to be disagreements with the outcome because of people’s strong ideological biases in that area.  But a judge must do his or her best to apply the law fairly and impartially even where the outcome will be politically unpopular.  The specter of ‘legislating from the bench,’ ironically, becomes much stronger because of the very interest groups that warn against it.  Interest groups that feed money into judicial elections hope to influence the elections in favor of judges who will be sympathetic to their causes, not in favor of judges who are fair and impartial.  If these groups succeed, it could result in judges who are too sensitive to the popularity of their opinions among their financial backers.  Then we would really have to worry about ‘legislating from the bench.’”

Despite its popularity as a campaign slogan among politicians and third-party groups alike, the phrase is overused and inaccurate, according to Chief Justice Moyer.

“‘Legislating from the bench’ is in the eye of the beholder,” Chief Justice Moyer said.  “For the cases that reach the Supreme Court, there is often no statement by the legislature that is on point and there are a lot of gaps.  The Supreme Court has to make a choice based on the facts and precedent.  Unfortunately, some judges do view certain cases as the opportunity to ‘make it right’ because they don’t like the legislation or a previous decision and that is wrong.  But, it is also frequently labeled as such when that is not the case.”

In an effort to thwart the influence of third-party groups, many states enacted judicial canons that constrained candidates seeking election as a judge from discussing issues that could come before them if elected, which is referred to as an “announce clause.”  However, in 2002 those canons came under fire on First Amendment grounds and the U.S. Supreme Court found them unconstitutional in Republican Party of Minnesota v. White.  Since then, some lower courts have interpreted the ruling to mean any prohibition of judicial candidates’ speech is unconstitutional.

“It is a difficult balance, and Minnesota v. White only just began to answer the question,” said Justice O’Connor, who was on the Supreme Court during the decision. “Some lower courts and commentators have taken the decision in White to mean that there can be virtually no regulation of judicial elections and campaign spending.  I think this is too broad a reading of the Supreme Court’s holding in the White case.”

The decision has helped ignite third-party interest in elections and these parties now routinely attempt to pin-down a candidate’s position on certain cases, often through the form of pre-election questions and surveys.  The Conference of Chief Justices is hoping the Supreme Court will look at the issue again by granting cert in a similar case.

Minnesota v. White is a limited decision that has been expanded by some courts that have gone too far,” Chief Justice Moyer said.  “Ohio has eliminated the rule at issue in Minnesota v. White.  A candidate can state a position, but cannot promise to rule a certain way.  But, most judges choose not to say anything, and I believe that is the correct approach.”

Other rules that focus on how and when judicial candidates can raise money have also been found unconstitutional.  The U.S. Eleventh Circuit Court of Appeals found unconstitutional a judicial canon stating that fundraising cannot be done by the candidates themselves but, instead, must be undertaken by the candidates’ campaign committees.  The U.S. Eighth Circuit Court of Appeals held it unconstitutional to bar candidates from soliciting by mail or to large groups.

“These issues can be avoided if systems for selecting judges are set up so that candidates are not inclined to make statements that could compromise their role as judge,” Justice O’Connor said. “Toward this end, I am a supporter of replacing partisan judicial elections with a merit selection process, whereby an independent commission of citizens recommends qualified judicial candidates for appointment by the governor of the state.  Where this is not possible, partisan judicial elections can at least be replaced with nonpartisan elections.  In states that insist on continuing the practice of electing judges through partisan elections, we must hope to educate voters to reject candidates who make statements that might compromise the fairness or impartiality of the judiciary.”

Other Approaches

As more money is pumped into judicial elections, states are investigating other methods of determining how judges earn a spot in the state judiciary.  Across the country, there are five basic systems in place: partisan elections, nonpartisan elections, executive appointment, legislative appointment, and merit selection.  There are hybrids and variations of these systems, including publicly funded elections and systems that use one method to initially fill an open seat and another for retention.  Every system has its critics and supporters, but overall, study after study shows the majority of Americans want to elect judges.  Even so, few Americans know anything about the candidates they are voting for (and many just skip the judicial election selection of the ballot) and party identification is the No. 1 reason for voting for a candidate.  In short, it is a “catch-22.”  Citizens need partisanship and campaigns to be able to knowledgeably vote for a candidate, but it is that very partisanship and expensive campaigning that experts say jeopardize judicial independence.

The second tool used by citizens when making decisions on judicial candidates is name recognition, or name familiarity. Where there are dozens of examples of candidates with popular names unexpectedly beating out heavy favorites, perhaps more troubling is when candidates win or lose based solely upon how voters identify with the candidate’s name.  Candidates with names that hint to race or ethnicity can be heavily disadvantaged. For example, in a 2006 California Superior Court election Judge Dzintra Janavs, a highly respected 20-year veteran of the court, was defeated by Lynn Diane Olson, who had only practiced law for four years more than a decade earlier and was currently running a bagel shop.  Olson did not even reactivate her bar membership until days before her campaign begin.

Critics on nonpartisan elections condemn the process as a mockery of democracy with many candidates running unopposed.  The majority of citizens do not like the idea of an appointment-based system because it strongly favors the politically connected.

In order to strike a balance between contentious elections and moving toward an appointment-based system, many judicial scholars advocate what is known as the Missouri Plan.  Under this system, a diverse appointment committee presents three candidates to the executive branch, which must choose one of the candidates.  After appointment, the judge faces an up-or-down retention election, where the public decides whether the candidate should maintain the position.

“Ultimately, it is a state’s responsibility to select its judges.  There is no perfect system, but two features that would improve the system are adequate public funding of races, or a diverse committee that evaluates qualifications, provides three recommendations to the governor, who then selects a judge who runs for retention,” Chief Justice Moyer said.

In recent years, even the retention elections themselves have garnered significant attention with third parties targeting judges in Arizona, Iowa, and Kansas for their decisions in specific cases.  In addition, there is talk of changing the system in the 16 states where it is currently employed, and legislation has been introduced in Kansas, Tennessee, Arizona, Indiana, Missouri, and Utah.

“Re-election and retention elections can certainly be problematic.  In Pennsylvania in 2007, an organization called PACleanSweep disparaged the entire state judiciary as being “pigs in robes” and ran ads urging Pennsylvanians to vote out all but one of the more than 60 judges up for retention election because these judges accepted a pay raise enacted by the legislature rather than returning it to the state treasury,” Justice O’Connor said.  “Retention elections do not, however, pose the same threat to judicial independence that partisan judicial elections do for several reasons. First, the judge up for retention election has no opponent, so candidates are not baited into making promises in response to the promises of competitors.  Second, judges in retention elections need not compete with other candidates for attention, so retention elections do not reach nearly the same height of campaign spending.  Finally, judges in retention elections have had a period of time on the bench from which people can judge their records.  While this can be problematic if candidates have made unpopular rulings, it also allows campaign oversight committees to evaluate their records for fairness and impartiality and create performance evaluations.  Retention elections allow the judge to run on his or her performance on the bench rather than making appeasing promises that could potentially undermine judicial independence.”

Where Do We Go From Here?

While the legal community and experts are calling for reforms, that call is not being heard.  With few exceptions, since the 1970s, voters have not been willing to adopt a less contentious and expensive system.  To the contrary, the majority of the reforms passed have made the system more partisan and controversial, not less. In 2006, voters in Colorado, Hawaii, Montana, Oregon, and South Dakota rejected initiatives for merit selection and retention elections.  In South Dakota, voters also rejected a plan – dubbed JAIL4Judges and aimed at “ending the arbitrary use of judicial immunity”– that would have created a sort of grand jury where judges could be indicted or stripped of immunity in civil cases.

“We are in danger of eroding the basic fundamental principle that no matter who you are, what you should expect is a fair and impartial process in how the decision is made,” Chief Justice Moyer said.  “The role of the judiciary is to act as a forum for the peaceful resolution of disputes between parties.  If you believe in the three separate branches of government, it is not for the court to correct legislation or to change words that are clear in the Constitution.  Its role is to apply the law as the legislature has stated.   The beauty of the system is that if the Supreme Court decides an issue not as the legislature intended, the legislature can always amend the law.”

In 2004, North Carolina was the first state to adopt public financing for all judicial elections. In 2007, New Mexico followed suit.  This system again attempts to strike a balance between cutting off the cash flow between parties and the candidates they later stand before in court and allowing the public to still elect judges.  Legislatures in Georgia, Illinois, Michigan, Montana, and Washington are also considering similar initiatives, but it is unclear how far these proposals will make it in cash-strapped states.

Other states have attempted to create bipartisan public information as a neutral counter to third-party attacks.  In particular, Kentucky faced an historic election in 2006 with every court seat in the state, less two Supreme Court seats, up for reelection. Two groups – Justice at Stake and Common Cause Kentucky – created a web site and public service announcements to educate voters on the candidates while the Judicial Campaign Conduct Committee worked to educate candidates and voters about the nature of judicial elections. In Ohio, a new committee organized by the Ohio State Bar Association after what were called extremely partisan judicial elections in 2002 has quieted the battlefront.

“Lawyers should be the voices that convince those in power that the selection of judges in many states is extremely deficient and needs to be changed,” Chief Justice Moyer said. “Lawyers are in the unique position to explain to the people the importance of the role an independent third branch has to play.”