Picking the Supremes: the impact of money, politics, and influence in judicial elections.

AuthorCosby, Teresa Nesbitt
PositionI. Introduction through II. The Historical Development of Judicial Selection Methods: The Push for Independence B. The History and Mechanics of Legislative Elections in South Carolina and Virginia, p. 73-113

ABSTRACT

Judiciaries actively seek to promote a perception among the public that the courts are independent and that they can be fair and impartial. One of the articulated ideals of state judiciaries is the desire to maintain independence from "negative" political influences. Some argue that the selection systems that best promote this ideal are the ones that are free from the pressures attenuated to elective systems, and that the biggest contemporary threat to the independence and impartiality of the judiciary is the presence of money, politics, and special interest influence in judicial campaigns. South Carolina and Virginia use a legislative "appointment" system of electing judges in their states. This method of selecting judges is an election where the only eligible voters are political elites. The justification for this method of choosing judges is that it best protects the judiciary from seedy electoral practices that corrupt public elections. Despite contrary assertions, there is no way to protect a purely elective system from the pressures of money, politics, and influence. The two states' processes for choosing judges preserves legislative control over the courts, and results in a system of patronage to the detriment of the diversity of interests of citizens. This paper's examination of the legislative election method of picking judges will add more weight to the argument that the merit system comes closest to promoting the constitutional ideal of an independent, fair, and impartial judiciary.

  1. INTRODUCTION II. THE HISTORICAL DEVELOPMENT OF JUDICIAL SELECTION METHODS: THE PUSH FOR INDEPENDENCE A. Methods of Judicial Selection 1. Public Election 2. Gubernatorial or Legislative Appointments 3. Merit Plan B. The History and Mechanics of Legislative Elections in South Carolina and Virginia 1. Virginia 2. South Carolina a. The Reform b. Running for Judgeship in South Carolina? c. Money, politics and influence in the election of the Honorable Donald Beatty C. Beyond Beatty--Other Impacts and Implications 1. Separation of Powers and Voting Rights 2. Delegation 3. Conflicts a. The Supreme Court and the Legislature b. Legislator-Lawyers and the "Scales of Justice". 4. Diversity 5. "Two hamburgers and a steak". 6. The Future III. CONCLUSION: WHEN PICKING THE SUPREMES MONEY, POLITICS, AND INFLUENCE WILL FIND ITS WAY I. INTRODUCTION

    In Federalist No. 78, Alexander Hamilton implored the new government of the United States to establish an independent judiciary as "an essential safeguard against the effects of occasional ill humors in the society." (1) In order to advance this ideal, Hamilton argued that judges should be appointed and should serve for life. (2) Despite Hamilton's reasoning, the challenge to establish the best method to select judges has plagued for centuries jurists, bar associations, scholars, politicians, and practitioners. The argument is as lively today as it was during the formation of the first constitutions of the individual states. The challenge for any legislature is to design a system that will structurally diminish the influence of campaign money in furtherance of the goal to create and/or sustain an independent and impartial state judiciary. There are three dominant systems to select judges: appointment, election, and merit. (3) A consensus of states appear to have chosen the merit system. (4)

    This paper expands the discussion of the best method to select judges by explaining and analyzing the legislative election method of judicial selection, which is often ignored by scholars. (5) The critique of the legislative election systems used to select judges in South Carolina and Virginia that follows reveals that no elective process can effectively insulate itself from the influence of money and politics. Therefore, states should implement a method to choose judges that structurally promotes judicial independence and also respects the diversity and interests of its citizens.

  2. THE HISTORICAL DEVELOPMENT OF JUDICIAL SELECTION METHODS: THE PUSH FOR INDEPENDENCE

    The first method of judicial selection among the states was by gubernatorial appointment. (6) In the 1840s, many states began to abandon the gubernatorial appointment process for popular partisan election. (7) This "new" partisan election method was designed to "reduce the aristocracy's representation on the bench" (8) and to promote an independent judiciary. (9) Proponents of this method of judicial selection believed that it would make the judiciary independent of the executive and legislative branches of government. (10) Contemporary reformers still make the argument that judicial independence is a necessity for justice in our society. (11) Judicial independence is dependent on the autonomy of the courts to rule without regard to how a decision would impact the executive or legislative branches of government. (12) Such independence from influence allows the courts to "'stand as the ultimate guardians of fundamental rights.'" (13) Judicial autonomy insures judicial independence by freeing the judiciary from the control of political elites. (14) Alexander Hamilton and the other founders craved judicial independence because of their experiences during colonial times under the rule of England and the King. (15) Colonists were frustrated by the fact that governors appointed friends to judgeships without any consideration as to merit. (16) In fact, Thomas Jefferson accused King George of "'ma[king] Judges dependent on his Will alone....'" (17) Jefferson's accusations served as a catalyst for the states' push for judicial accountability. (18)

    The thirteen original colonies initially adopted appointment systems where judges were appointed by governor, legislatures, or special councils created by legislatures. (19) Seven of the states used the legislative election method to choose judges, and five states adopted a scheme whereby the respective governor appointed the state's judges. (20) Delaware chose the method the founders adopted; the governor appointed the judiciary subject to legislative confirmation. (21) At this time, no state held public elections for judges. (22) States that entered the Union after the thirteen original states used an appointment system for judicial selections until 1830. (23) States began to adopt elective systems in response to "Jefferson's charges in the early 1800s of a run-a-way, aristocratic, and unaccountable judiciary," (24) Vermont, Indiana, and Georgia became the first states to adopt public elections of trial court judges. (25) Mississippi amended its constitution in 1832 to mandate the public election of its judges. (26) By the end of the Civil War, twenty-four states elected their judiciaries. (27)

    While Jefferson urged judicial reform in order to avoid the cronyism of a bench loyal to the Crown, popular elections of judges fell short of the judicial accountability that the founders had in mind. Matthew Streb, Assistant Professor of Political Science at Northern Illinois University, explains that the adoption of judicial elections in the states introduced new problems. (28) "The first judicial elections established were partisan and dominated by the machine politics of the time, which led to cronyism and corruption." (29) In the early 1900s, the Reformers (like the Progressives, the American Bar Association, and the American Judicature Society) (30) alleged that machine politics "[were] causing citizens to view the judiciary as 'corrupt, incompetent, and controlled by special interests.'" (31)

    The protection and advancement of democratic values in a judicial selection process and the protection of courts from the predatory influences of special interest financing, renewed the debate on how to implement an autonomous judiciary. (32) The Reformers sought to alleviate the problems caused by an elected judiciary by endorsing judicial selection reform. (33) The objective was to take "the judge out of politics." (34) One reform advanced was for non-partisan elections in which a candidate's political party affiliation would not be disclosed in an effort to weaken political machine control over the nomination process and to remove partisan interests from judicial elections. (35) The move to nonpartisan elections was seen as a way to clean up the judicial selection process. (36) Despite this intent, critics complained that politics still played a role in judicial elections because, even for non-partisan elections, judges still had to campaign for office. (37)

    1. Methods of Judicial Selection

    Almost every state has changed its method of judicial selection at some point in time. (38) Attempts to reform the way judges are chosen has led to the creation of three primary methods of judicial selection among the states: public election (partisan or nonpartisan), gubernatorial/legislative appointment, and the merit plan. (39) Sixteen states use a pure merit selection system, (40) nine states use a merit selection process and other methods, (41) seven states use partisan public election, (42) fourteen states have nonpartisan public elections, (43) three states allow gubernatorial appointments, (44) and two states utilize legislative appointment, which is arguably an elective process. (45)

  3. Public Election

    Public judicial elections are either partisan or non-partisan. (46) In a partisan election, the candidate's party will appear on a ballot; in a non-partisan election, the candidate's party affiliation is absent from the ballot. (47) The move to the public election of judges began in 1840 and spanned forty-six years; over that time period, nineteen of thirty states adopted constitutions that prescribed the public election of trial and appellate court judges. (48)

    The mechanics of public judicial elections are the same as executive and legislative elections, namely, the candidate running for office must raise monetary contributions to support their candidacy. (49) These types of campaigns become...

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