Politicians and scholars worldwide have long been impressed with the fragility of judicial power. When it comes to securing compliance with their decisions, courts are said to have neither the power of the "purse"--the ability to raise and expropriate money to encourage compliance--nor the power of the "sword"--the ability to coerce compliance. In the absence of these tools, courts really have only a single form of political capital: legitimacy. (1)
In 2010, Justice Sandra Day O'Connor provided a keynote address for a symposium conducted by Seattle University School of Law entitled State Judicial Independence--A National Concern. (2) In that keynote address, she stated: "While our judiciary has always faced significant attacks, the single greatest threat to judicial independence now is fairly modern, and it's uniquely American. It's the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial election campaigns." (3)
I share Justice O'Connor's concern that the special interest financing of judicial elections has the very real potential to fatally erode the public's trust and confidence in the impartiality of the judiciary. (4) In my last State of the Oregon Courts address presented to the Salem City Club in January 2012, I stated that:
So far, Oregon has been spared the financial arms race that typifies the funding of judicial election campaigns in many other states. Unfortunately, these judicial campaigns are becoming too political, characterized by exorbitant spending, the involvement of national special interest groups, and a blizzard of misleading attack ads that mask the true interests of the sponsors. Selecting judges through this kind of political process, with its inflammatory rhetoric and demagoguery--erodes public confidence in the impartiality of all judges. Polls consistently show that the public believes that judicial campaign contributions pay off for donors. A 2010 Harris poll found that more than seventy percent of Americans believe that campaign contributions influence courtroom outcomes. History proves that our constitutional system of government has endured because the public and the other branches of government acquiesce to judicial authority. They have confidence and trust in the impartiality and the independence of judicial decision-making. In other words, decision-making free of outside political or economic influence. However, the special interest financing of judicial campaigns in states across the country has the potential not just to erode, but to destroy our children's and grandchildren's trust and confidence in our courts. We should not wait for the nuclear judicial arms race to strike here. (5) Indeed, I believe that these threats have already established themselves as reality in many different manifestations around the nation. I present below a few examples that I hope suffice to set out the contours of the concerns I feel are present. And then I present for consideration a modest proposal (6) for the selection of judges that
I think addresses many of those concerns.
By way of brief backdrop, however, I think it important initially to state directly the important role that courts serve in our society. At the time of our nation's founding, Alexander Hamilton stated:
The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (7) I agree with that general statement regarding the importance of independent courts in ensuring that individual rights and privileges are protected from being overborne by majority rule. (8) And I have become ever more concerned about the possibility that our courts will lose their place as a foundational pillar in our constitutional framework due to a loss of public confidence engendered by the infusion of moneyed interests in judicial elections. (9) As I have written previously,
To maintain the judicial branch as the cornerstone of American governance, the public must continue to have confidence that judicial decision-making is impartial and unfettered by inappropriate external forces. However, the public's perception and confidence in the independence and impartiality of the judiciary can be severely eroded by spiraling election costs, special interest financing of judicial elections campaigns, and the unrelenting and unrebutted attacks on judges and courts by vocal interest groups. (10) Since the time that I wrote those words in 2003, these concerns have only become worse.
In its publication entitled The New Politics of Judicial Elections 2009-10, the Justice at Stake Campaign in coordination with the Brennan Center for Justice and the National Institute on Money in State Politics reports statistics that should cause real concern. These statistics include the following:
* A total of $38.4 million was spent on state high court elections in 2009-2010; (11)
* Independent expenditures--by state parties and special-interest groups--accounted for $11.5 million (29.8%) of all money spent to elect high court justices; (12)
* Spending on judicial retention elections expanded dramatically from approximately 1% of the total spent on judicial elections from 2000-2009 to 12.7% of all judicial election spending in 2009-2010 (including nearly $4.9 million expended in four states: Illinois, Iowa, Alaska, and Colorado); (13)
* Outside groups spent a record $3.6 million on political advertising in Wisconsin's spring 2011 supreme court race; and (14)
* In Iowa, when three justices--who voted to strike down a state law banning same-sex marriages--sat for retention elections, it became a statewide battle that attracted national attention and special-interest money: the 'Vote No" campaign cost approximately $1 million, with out-of-state groups accounting for more than $900,000; and Fair Courts for Us, a 'Vote Yes" group, spent more than $400,000 to support the incumbents. (15)
As the Brennan Center publication notes, "[t]hese developments are part of a larger, national trend. Independent spending in the 2010 federal elections was more than four times greater than it was in 2006--and more of this spending was done anonymously than ever before." (16) In fact, significant expenditures are being made in circumstances that mask the true interests of the contributors. (17) It appears that the country is moving toward judicial election campaigns that are as fractious as the current partisan gridlock that grips the nation as we head toward the presidential election in November 2012.
The Brennan Center's information coincides with that reported in DRI's publication Without Fear or Favor in 2011: A New Decade of Challenges to Judicial Independence and Accountability. (18) DRI reports that:
From 2000 to 2009, an estimated $93.6 million was spent on television advertising involving judicial elections. The two-year cycle from 2007 to 2008 was the most expensive period for television advertising in the history of supreme court elections with almost $27 million spent on television ads. Eight states set spending records on television advertising during this time frame, and 2008 saw more television ads aired in supreme court judicial contests than ever before. (19) And, ominously, the DRI report cites to a 2009 Gallup poll which "revealed that 89 percent of voters believed that the influence of campaign contributions on judges is a problem and 90 percent believed that a judge should not hear a case involving an individual or group that contributed to the judge's campaign." (20) A 2007 Annenberg Survey previously determined that sixty-nine percent of the public believes that raising money affects judges' decisions to a great or moderate extent. (21) And a 2001 study by the Justice at Stake Campaign found that seventy-six percent of the public believes that campaign contributions have great or some influence on judges' decisions. (22)
These concerns are not all that surprising in light of developments such as the well publicized circumstances involved in Caperton v. A.T Massey Coal Company, a case decided by the United States Supreme Court in 2009. (23) In Caperton, the Court determined that a $2.5 million donation by the CEO of A.T. Massey Coal to a special interest group that supported the election of lawyer Brent Benjamin to the West Virginia Supreme Court had a significant and disproportionate influence in placing him on the case when the matter subsequently proceeded to be heard before the West Virginia court and newly elected Justice Benjamin cast the deciding vote in Massey Coal Company's favor. (24) The Court concluded that the conflict presented was extreme enough that Justice Benjamin's failure to recuse himself was a violation of due process. (25)
Of course, not all states select their state judges by the election process. The American Judicature Society website reports the following breakdown of selection methods among the states:
Gubernatorial appointment: Maine, Massachusetts, and New Jersey. (26)
Legislative appointment: Connecticut, South Carolina, and Virginia. (27)
Partisan elections: Alabama, Illinois, Louisiana, New Mexico, Pennsylvania, Texas, and West Virginia. (28)
Non-partisan elections: Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon, Washington, and Wisconsin. (29)
Merit Selection (including various forms of gubernatorial appointment from list of...