We have met the special interests, and we are they.

• Author: Dimino, Michael R.
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

The subject of this symposium--special interests and judicial elections is an important one and will be much in the news in light of Caperton v. A.T. Massey Coal Co. (1) In Caperton, the Supreme Court held that the Due Process Clause was violated when an elected judge participated in a case involving a company whose CEO spent large amounts of money to help elect the judge. (2) My purpose here is to broaden our focus and argue that, while the influence of campaign contributors is likely to draw most of the popular attention surrounding the power of special interests within the judiciary, (3) the exercise of judicial power will advantage certain interests at the expense of others regardless of the method of judicial selection a particular state uses. Accordingly, we should be careful that attempts to control the influence of special interests do not, in fact, simply advantage one set of special interests.

I have two major points. First, because there is no such thing as a general interest, it makes no sense to speak of "special" interests. Second, judicial decisions make policy. In so doing, they benefit certain interests at the expense of others, whether judges are selected by elections, appointments, or some hybrid system. So, it should not be surprising that politics pervades the choice of judges under every system used or considered today. No selection system may be capable of eliminating the power of interest groups, but the selection system may determine which of those interests are benefited. As a result, debates about judicial selection should be viewed skeptically and are far more likely to reflect disagreements about policy than about the appropriate selection methods to ensure judicial quality.

1. WE ARE ALL "SPECIAL" INTERESTS

   The term "special interest" is a disparaging one because it implies a comparison with something else--a "general interest." But it is elementary political science that there is no general interest. No policy is optimal for all segments of society, and therefore the job of policy-makers is to choose between potential benefits and between potential beneficiaries. Is a town to zone land for parks or businesses? Build schools, lower taxes, or increase welfare benefits? Construct roads or public transportation? It simply gets us nowhere to label some of these policies the work of "special interests"; rather, we use the label to dismiss those policies we have already concluded are unwise. Thus, job creation can be portrayed either as a benefit to the community or as a special benefit for the employers and employees who most directly profit. Parks can be seen as advancing a general interest or as a special benefit to the people who play there or work or reside nearby. The very concept of a "special interest," therefore, is purely rhetorical and is incoherent and useless as a tool of logical persuasion. (4)

   The interests benefited and harmed by judicially made public policy are just as "special" as those benefited and harmed by legislatively made policy. A court's adoption of strict liability or negligence, its choice between strict and forgiving readings of a statute of limitations, and its interpretation of the Takings Clause (5) all result in benefits and harms to identifiable portions of society. (6) In such circumstances the judicial process has benefited some interests over others, regardless of the outcome. Accordingly, the relevant question is not whether the interests favored by judicial elections are "special," but whether any system of selecting judges can avoid the risk of giving certain interests an advantage in the judiciary's policymaking. The answer is that no such system is possible. Critics of elections, therefore, should have to explain why a system that favors their interests is preferable to one that favors the interests preferred by voters. (7)

2. COURTS AS POLICY-MAKERS

   Everybody understands that courts make policy, and, therefore, everybody understands that the results of court decisions advantage certain interests. The problem, according to those who decry special-interest influence, is that the interest groups not only benefit from, but also seek to shape, judicial decisions. Thus, while critics may admit that the phrase "special interests" is misleading and incapable of neutral definition, their essential point remains: Judges should not be influenced by forces outside of the law, whether those interests are "special" or otherwise, because judges should not be "politically vulnerable for being legally right." (8)

   Judicial independence, however, allows judges not only to enforce long-established or clear laws but also to exercise discretion in the interpretation of ambiguous law. Where a court's decisions have a great impact upon public policy and when reasonable jurists can disagree as to the appropriate outcomes--as in virtually every state-supreme-court decision in which there is a dissent and in a significant percentage of unanimous cases as well--the people's ability to affect the membership of courts through elections is most beneficial, and the insulation of those courts from public influence is least defensible. Indeed, cases where no reasonable jurist could disagree are extremely rare at the level of state supreme courts, notwithstanding the protests of some critics, including Professor Schotland in his unintentionally ironically titled Plea for Reality, that "law-making by judges ... [comprises] a minor fraction of the docket." (9) Accordingly, a critique of elections stressing judges' mechanical, law-applying function assumes a simplistic, fourth-grade-civics ideal of the judicial process that portrays judicial decisions as neutrally discovering law in a manner unaffected by political consequence or ideology. (10)

   Of course any particular court decides very few cases dealing with the most divisive public issues, such as abortion, affirmative action, and the right to die. Some of those cases involve statutory interpretation rather than bringing a judge's "own judgment" (11) to bear on an interpretation of a constitutional phrase as vague as the Eighth Amendment's Cruel and Unusual Punishments Clause or the Fifth and Fourteenth Amendments' Due Process Clauses. However, decisions that do not make headlines still make policy (consider implied private rights of action, for example), and, as rare as it is for a court to decide a crucial case about school funding or the death penalty, those cases may be viewed as the most important ones a court hears. It is a curious defense of judicial independence to say that society should have to tolerate unrepresentative judicial lawmaking concerning the legal questions that matter most so that judges can be free to reach proper conclusions with respect to the hum-drum. (12)

   Moreover, as anyone who has read a statutory-interpretation case can attest, the meaning that a judge gives to statutory text can vary tremendously depending on the judge's view of the potential policy consequences. (13) Further, judges' common-law-making power is not subject even to the restraints judges face in interpreting statutes. Thus, state supreme courts, which exercise the power to shape common law far more than the federal courts, indisputably make policy based on their views of good policy. (14)

   Interest groups have long recognized courts' policymaking capabilities and have sought to influence decisions of both elected and appointed courts for decades. Such influence is relatively uncontroversial when groups such as the NAACP, NRA, ACLU, etc., file amicus briefs, fund litigation, offer advice to litigants, uncover potential plaintiffs, or develop their own test cases. (15)

   Interest-group influence becomes controversial, it appears, only when the groups attempt to influence judicial decisions by influencing the selection of the judges who make them. And there can be no doubt that...