Judiciary

• Author: Jeffrey Lehman, Shirelle Phelps

Page 59

The branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes, and otherwise administer justice.

The U.S. judiciary comprises a system of state and federal courts, tribunals, and administrative bodies, as well as the judges and other judicial officials who preside over them.

Every society in human history has confronted the question of how to resolve disputes

Page 60

The Politicizing of American Jurisprudence

An old saying goes, "A judge is a lawyer who knew a governor (or senator or president)." The inference is unavoidable: judges are political creatures. From many of the nation's law professors to leading members of its foremost bar association, some legal experts think this assertion is regrettably all too true.

Only federal judges and a handful of state judges are appointed for life, barring IMPEACHMENT. In all other states and in local governments, most judges are elected by popular vote for a specific term. Voters tend to elect persons who share their views. The same is true for most gubernatorial appointments, although in many states this tendency is tempered by senatorial confirmation. Inescapably, the development of platforms that represent the most popular, prevailing, or promising views is a political process.

In the words of John Adams's Massachusetts constitution, it has always been the desire to make judges "as free, impartial and independent as the lot of humanity will admit." In a political system where party politics are defined by social issues and where JURISPRUDENCE affects those issues, however, party alignment of judges seems inevitable, either by default or by declaration. The extent is arguable, but few would deny that judges assume the bench based on how others perceive they will run the court: conservatively or liberally.

Ostensible checks and balances exist, of course. All judges are expected to follow ethical standards requiring disinterested and unbiased opinions, which most do. Most states have a CODE OF JUDICIAL CONDUCT and/or ethics for this purpose, generally fashioned from that of the AMERICAN BAR ASSOCIATION (ABA). These codes proscribe many instances of campaign conduct for prospective and current judges. Judges cannot personally solicit or accept campaign funds and often are prohibited from identifying themselves with any political party. Typically, they must run on a non-partisan ticket.

But nothing prevents POLITICAL ACTION COMMITTEES (PACs) from making campaign contributions to judges. Some scoff at the imposition of limits. "If PACs are limited, people go out and create more PACs," explained Dick Wilcox, president of the Business and Industry Political Education Committee in Mississippi. "If wealthy individuals are restricted, they give money to their secretaries, wives, or children to contribute." Contributions add up: Michigan spent $16 million on judicial elections in 2000 alone. In Georgia in 2002, races for two Supreme Court seats garnered more than $700,000.

Electing judges, however, is unnecessary. As an alternative, some point to the pioneering Missouri system. Under this system a governor appoints all state trial and appellate judges with the advice and consent of the legislature. Still another variation seeks to further depoliticize such choices by requiring a governor to select among nominees submitted by a selection panel or special nominating committee.

Support for reform is growing. In Michigan, Senator Ken Sikkema introduced a bill in 2001 for a Constitutional amendment allowing the governor to appoint justices to a single 14-year term, an idea favored by state supreme court justice Elizabeth Weaver. More dramatically, the ABA has called for a sweeping overhaul of the current state system. In 2003, the ABA Commission on the 21st Century Judiciary warned that partisanship over the courts was escalating to crisis levels. Among 23 recommendations, the commission called for limiting judges to service of either one long term or until a specific age, without eligibility for retention or reelection. Such limits are needed to "inoculate America's courts against the toxic effects of money, partisanship and narrow interests," the commission declared. (Justice at Stake Campaign. "ABA Commission Warns: State Court Systems at Risk." March 2003.)

Advocates of reform say it may cure other ills and weaknesses, too. Reform might eliminate so-called "negative campaigning." Michigan Supreme Court Chief Justice Maura Corrigan believes negative campaigns create perceptions among voters that justices are "bought" by special interests. Moreover, judges may lose independence out of fear that certain opinions will be used against them in negative campaign ads.

Another blemish that might be cured is that of real or perceived lawyer LOBBYING. For years, attorneys?particularly plaintiffs' lawyers?have outspent the largest oil and automotive companies in judicial campaign contributions. The ABA has spoken out sharply against attorneys contributing to campaigns of judges before whom they do frequent business or from whom they wish to gain court-appointed business. Yet just like other campaign contributors...