|Author:||Stephen J. Ware|
|Position::||Professor of Law|
I. Law as Politics . A. Correlation with Voters' Preferences. B. Correlation with Campaign Contributors' Preferences. 1. Buying Justice. 2. Buying Policy. II. Alabama's Judicial Politics . III. Arbitration Law in Alabama . A. Correlation, Not Causation. B. Arbitration Law Background. C. The Data: Reported Decisions From 1995 Through 1999. 1. Formation: Mutual Manifestations of Assent. 2.... (see full summary)
Thanks to Ron Krotoszynski, Stuart Banner, Larry Baum, Frank Cross, Paul Carrington, Bill Marshall, Bill Leatherberry, Barry Currier, Susan Nielsen, Ekta Patrawala, Todd Burkett, Thomas Gould, and a law professor in Alabama who chooses to remain anonymous. Thanks also to participants in law faculty workshops at Case Western Reserve University and Cleveland State University. Law is politics. Legal Realists advanced this proposition in the early 20th Century,1 and it seems to have become the received wisdom today.2"Money is the mother's milk of politics,"3as election campaign contributions rise to dizzying new heights.4 If law is politics and money is the mother's milk of politics, then a simple logical step identifies the relationship between money and law: campaign contributions buy judicial decisions. Is this accurate? Do elected judges consistently move the law in the direction sought by those who fund their election campaigns? While scholars increasingly study the relationship between elected judges' votes in particular cases and the apparent desires of voters,5 scholars write less about the relationship between elected judges' votes in particular cases and the apparent desires of campaign contributors. This article is a step toward filling that gap. This article begins with a brief review of the scholarly literature on judicial elections in Section I. Then it turns to a case study of judicial politics in Alabama. Section II tells the recent history of the Supreme Court of Alabama and the role two interest groups (plaintiffs' lawyers and business) have had in the elections to that court. Section III presents the bulk of the original research for this article, a review of 106 decisions by the Supreme Court of Alabama from January 18, 1995 through July 9, 1999. The decisions are in the area of arbitration law and reveal the remarkably close correlation between a justice's votes on arbitration cases and his or her source of campaign funds. Finally, Section IV concludes that this data provides a striking example of contributors to judicial election campaigns buying changes in law and policy, much like contributors to other election campaigns buy changes in law and policy. I. Law as Politics . Judicial selection has been an issue in the United States since the nation's founding. While Hamilton argued for the independence of judges appointed for life,6 Jefferson argued for the accountability of judges with limited terms who must stand for re-election or re-appointment.7 While those emphasizing independence succeeded in getting life tenure for federal judges,8 those emphasizing accountability have largely had their way in the selection of state judges.9 Most states' judges face election.10How do elected judges behave? In particular, do they decide cases in accord with the preferences and interests of those who voted for them and/or those who contributed to their election campaigns? This question should be placed in the context of judicial behavior more generally. Many people, including many lawyers, believe that judges generally make decisions based on the sorts of things discussed in law school, such as: "(1) the language of the applicable law, (2) the intentions or motivations of those who made the law, (3) the precedents established in previously decided cases, and (4) a balancing of societal interests."11 In contrast, the "leading school of thought in political science"12 holds that courts "decide disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the [judges]."13 Political scientists advocating this "attitudinal model" contend that it explains judicial decisions better than does the "legal model," with its focus on language, intent, precedent and societal interests.14 As Frank Cross states: The political science research and the attitudinal model are significant in that they could potentially obliterate the foundations of much current and past legal scholarship. The attitudinal model suggests that judges do not make their decisions based upon reasoned judgment from precedent or statute and consideration of their role in the legal system. Rather, many political scientists claim that a judge's decision depends primarily upon her individual political ideology and the identities of the parties.15 In a sense, then, the attitudinal model corresponds to the strong strain of Legal Realism which "contends that law is politics through and through and that judges exercise broad discretionary authority."16 Advocates of the attitudinal model assert that it, unlike the legal model, can be empirically tested.17 These political scientists claim that a judge's attitude is "amenable to testing."18But how can this be? In this context, "attitude" refers to the judge's ideology or "policy preferences."19 These beliefs, like any other beliefs, are concealed inside the believer's head.20 It is, therefore, troubling as a philosophical matter to build a model around a political scientist's claimed knowledge about a judge's "attitude." Because a judge's attitude can never be known to anyone but the judge, political scientists have had to use other data as proxies for "attitude." Such data include: party affiliation, background experiences and social characteristics, prior votes, speeches, and newspaper editorials.21 This article avoids philosophical controversies about knowing someone else's "attitude," by focusing on data that is less controversially knowable: campaign contributions.22 This article examines the relationship between a judge's votes and the source of contributions to the judge's election campaign. Before examining that topic, however, a brief review of the literature on judicial elections is in order. A. Correlation with Voters' Preferences. Political scientists study elected officials, and elected judges are no exception. There is debate within political science about the effects of different methods of judicial selection: partisan election, non-partisan election, appointment for life, and appointment followed by retention election.23 The political science literature, for example, discusses whether judges selected by one method are more innovative policymakers than judges selected by another method.24 Some political scientists address the relationship between elected judges' votes in particular cases and the apparent desires of voters.25 How close a correlation is there between the way a particular judge decides cases and the way those who voted for the judge want the cases decided? Do most voters who vote for Judicial Candidate X want the law to move in one direction, while most voters who vote for Judicial Candidate Y want the law to move in another direction? And if X is elected, does the law actually move in the direction his voters wanted, while if Y had been elected the law would have moved in the direction her voters wanted? Do the policies preferred by a majority of voters actually get enacted by elected judges? Lawyers, as well as political scientists, consider these questions. In recent years, voters have removed from the bench several judges after high-profile campaigns focusing on the judge's votes on a single issue, often the death penalty.26 This has led some judges, lawyers and legal scholars to worry that good judges are losing their careers over as little as their votes in a single case.27 These good judges may be replaced by bad judges whose only reason for ascending to the bench is their commitment to vote with the majority of the electorate on the single issue in question.28In other words, Judicial Candidate X is getting elected and the law is moving in the direction his voters wanted.29 This bothers commentators who do not share the policy preferences held by the majority of voters. These commentators might be described as present-day Hamiltonians because they would prefer a system with less judicial accountability and more judicial independence. But even present-day Jeffersonians, who emphasize accountability to voters, are bothered by single-issue elections. These commentators like the idea of the law moving in the direction desired by the majority of voters, but in single-issue elections it is only the law on a narrow, high-profile issue that moves in the direction desired by a majority of voters. All other areas of the law may move in a direction opposite to that desired by a majority of voters.30 This worry seems serious because voters cannot be expected to know about the day-to-day work of judges. Unless the judge makes a controversial decision that generates media attention, it is unlikely that the judge will make any impression in the minds of ordinary voters.31"Probably the only jurists in America with substantial name recognition are Judge Wapner, Judge Judy, and Judge Ito."32 It is not realistic to expect voters to be informed about the direction a judge moves the law in any of the areas the judge may affect, whether that be divorce, commercial or environmental law. To put it another way, voters' ignorance of judges is rational because the gains to an individual voter of becoming knowledgeable about judges are less than the costs of doing so.33 Voters' ignorance of judges is exacerbated by ethics codes that deter judicial candidates from communicating useful information to voters. The codes "prohibit candidates from making pledges or promises of future performance in office or from stating views on disputed legal or political issues."34 For a number of reasons then, it is unrealistic to expect knowledgeable voting in judicial elections. Perhaps the most knowledgeable voting for judges that can routinely be expected is party- line voting in which the judge's party affiliation (Republican or Democrat) serves as a proxy for the judge's general philosophy and orientation.35 B. Correlation with Campaign Contributors' Preferences. Having just considered the relationship between elected judges' votes in particular cases...
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