Symposium on Judicial Elections: Selecting Judges in the 21º Century

• Author: Bradley A. Smith
• Position: Professor of Law, Capital University Law School (on leave); Commissioner, Federal Election Commission.
• Pages: 437-454

Page 437

Bradley A. Smith: The views contained herein are those of Commissioner Smith and not the Federal Election Commission. The author wishes to thank all symposium authors for their time and participation.

A substantial majority of American judges are subject to some type of voter election, and have been for over a century.¹ This fact often seems forgotten, perhaps because of the higher visibility of federal judges, who are appointed for life "during good behavior," vis a vis state judges, who are generally elected. Nevertheless, the fact is that in thirty-nine of our fifty states, judges must face the electorate in some form, either through competitive or retention elections. Of the nation's more than 1200 state appellate judges, 47% are appointed, 40% face partisan elections; and 13% face non-partisan elections. Of nearly 8500 state trial court judges in courts of general jurisdiction, just 24% are appointed, with 43% facing partisan elections and 33% involved in non-partisan elections.²

Since the beginning of the last century the American Bar Association has fought long and hard for merit selection of judges. While more judges are appointed now than in 1900, the numbers have not changed radicallyif the rate of change over the last century keeps up, Professor Roy Schotland has calculated that it will take just 160 more years until all appellate judges are appointed and just 770 years until all trial court judges are appointed.³ So it appears that for our lifetimes, we can probably assume that a substantial portion of our judges will be elected.

Relatively little academic attention has been focused on judicial elections, however, perhaps because judicial elections have not Page 438 traditionally been front and center in the public eye. Rather, judicial races have been marked by low levels of competition, and little campaigning. Such campaigning as there is, is marked by low spending and is usually limited to bland statements about general fitness. All that may be changing, however. Certainly at the level of state supreme courts, a growing number of judicial elections are hotly contested. Beginning with the recall elections of three California Supreme Court justices in 1986, we have seen a rapid growth in traditional campaigning and interest group activity in judicial elections. These wars were perhaps fought most extensively in the last decade in the former paradise of the plaintiff's bar, Alabama, where business interests engaged in a concerted effort to change the make-up of the state's high court. Races in many other states such as Tennessee, Michigan, and, notably for a symposium being held two blocks from the Ohio Supreme Court, Ohio, have also drawn substantial attention. It looks now as though it is only a matter of time before this level of interest and interest group participation filters through to other states' high courts, and then begins to seep down to the level of state intermediate appellate judges and trial court judges.

With this increased electoral attention to judicial races, we are seeing, and will see, many of the same issues that concern us about elections to legislative and executive offices - most notably a concern over sources of campaign funds, the influence of donors on the judicial process, the time devoted to raising campaign funds, and the effect of negative advertising on the public's perception of those holding office. Moreover, these issues may be perceived as even more problematic in the realm of judicial elections than they are in legislative elections, if, as I suspect most of us believe, there is something "special" or "different" about the judiciary and, therefore, judicial elections.

As more attention is devoted to judicial selection, there may be a natural tendency for short-term political considerations to dominate even the academic debate, distracting scholars from the long-term debate for which the academy is particularly suited. At the core of that long term debate are three questions: First, what kind of people do we want as judges?; second, what do we want judges to do; and third, what is the method of judicial selection most likely to yield the desired results over the long term?

For almost a century the position of most of the organized bar has been whomever we want judges to be and whatever we want them to do, it is most likely to be accomplished without competitive elections,⁴ but rather through what is usually referred to as "merit selection." Merit selection, it Page 439 is argued, provides for judicial independence from political passions, which is believed necessary to the proper dispensation of justice.

This symposium challenges us to rethink our attitude toward judicial elections, and to reconsider what type of people we want on the bench, and what we want them to do once they are there. I am honored to take part in this discussion and to introduce the papers that follow with this brief essay.

Professor Paul D. Carrington has been one of the few prominent leaders of the bar to argue strongly against the organized Bar's support for an appointed bench, and his 2001 Sullivan Lecture serves as the keynote address for this symposium. Building on earlier essays,⁵ Professor Carrington argues that judicial accountability, in the form of elections, is important to maintaining popular confidence in the judiciary and the rule of law.⁶ Drawing on the work of the influential, but now oft-forgotten, 19^thcentury Ohio legal theorist Frederick Grimke, Professor Carrington expresses a sharp distrust of judicial power. In an argument that could be generalized to most any state court of last resort, or the United States Supreme Court, he argues that the Supreme Court of Ohio is in important respects a legislature, often making policy, sometimes well and sometimes ill.⁷

Professor Carrington further notes that the U.S. Constitution is virtually unique providing for life tenure to judges, subject only to "good behavior." Professor Carrington believes that this, coupled with the doctrine of judicial review of statutes on constitutional grounds, has created a ruling judicial "oligarchy" that "violates our most treasured political rhetoric" and conflicts with the principles of republican government that are at the core of our political life. Thus he seeks a form of judicial selection that will promote "accountability" in the judiciary.⁸

But what does it mean for the judiciary to be accountable? Almost certainly, we want judicial accountability to be somewhat different from legislative accountability.

Consider, for example, a hypothetical candidate for Congress from West Virginia. Few would think the candidate unethical if he were to announce, early in the campaign, that his purpose in running was to defend the bituminous coal industry, and made that theme the key to his campaign. Moreover, few would find it terribly upsetting if the candidate then gained Page 440 substantial public support from the United MineWorkers and the coal mining industry. And few would consider it unethical if, having defeated a candidate who promised a more balanced approach to mining issues, the newly minted representative frequently conferred with his labor and industry backers before taking stands on legislation, and found that the positions he took in support of coal reflected majority sentiment in the district.⁹ Yet imagine if a candidate for judicial office were to announce in advance that he would decide commercial disputes involving the coal mining industry by doing whatever was in the interest of the mining industry, or supported by the majority of the populace, regardless of the other merits of the case. Such a declaration would be considered little short of appalling.¹⁰

Professor Carrington certainly doesn't believe that judges should be accountable in the same way that legislators might be held accountable.¹¹ Rather, he suggests that judges should be "responsive to the shared moral judgement of the community it purports to serve." But if merit selection yields an unresponsive "oligarchy," Professor Carrington fears that judicial elections, though desirable, run the risk of creating judges who are responsive to campaign contributors rather than to the public at large. This responsiveness may take the form of direct quid pro quo rulings. More probable, however, is that interest groups will spend large sums of money to elect judicial candidates whose backgrounds and philosophies are likely to yield "proper" results. Unrestricted political spending in judicial races runs the risk, suggests Professor Carrington, that "[o]ur law will simply be for sale to the high bidders."¹²

Professor Carrington's solution is an official voters' guide published by a bipartisan public commission having the power to make rules governing its contents. Candidates could purchase space in the guide, and an effort would be made to funnel endorsements of the Bar and other interest groups through the guide as well. Candidates could send approved Page 441 videos with the guide. Derogatory statements about candidates would be permitted, but the Commission will be directed to assure a reasonable right of reply. The guides would be subsidized by the state and made available to the public for free. Candidates who participated in the guide would agree to a "rigorous requirement of publicity as to the source of the funds being used to buy a place in the guide or for any other purpose bearing on the campaign," and would also limit their contributions to "a modest sum accepted from any source." ¹³ Organizations placing endorsements in the guide would also agree to limit other campaign activities.

Perhaps the most startling aspect of Professor Carrington's proposed solution is its modesty compared to many proposals to restructure and regulate legislative campaigns.¹⁴ There are no direct subsidies to candidate campaigns; no "free" TV; no mandatory limits on spending or contributions; no efforts to silence...