Paul Carrington's paper requires what administrative law people call "`hard look' review" for two reasons:
First: In his view, life tenure for judges "is a genuinely bad idea," so outlandish it has been copied only once, by "the constitution of Western Samoa."1
In my view, whether or not Article III2 is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal judges independent, i.e., so protected from external pressures and internal incentives. Article III's grant of life tenure is the bedrock of our Constitution's guarantees (and therefore our Rule of Law and our protection of minorities and dissenters) and assurances that lasting values are not eroded by ephemeral passions.3 Page 490
Given the mountain of thoughtful writing about counter-majoritarianism, I will not even try to add to that commentary. There is no proving that life tenure is, on balance, desirable because like everything else in life, it has strengths and weaknesses, and different people may bring out the balance at different points. But when an attack on Article III comes with provable errors, noting those errors raises a caveat about the attack. I believe that life tenure is so uniquely important, that no error-ridden attack on it can enjoy a free pass.
Second: Carrington attacks the integrity of elective judges.4 He says that "what we have in high court elections is interest group politics in its most unwelcome forms;" that such groups "try to buy a high court," to gain "control over the court," noting that the U.S. Chamber of Commerce "candidates prevailed in ten of the twelve supreme court races it targeted."5Ohioans know that the Chamber's effort against Justice Alice Resnick backfired, helping her to a 57% win. (What a shame that the able judge who challenged the able Justice is tarred by some of what was done on his behalf.) Two other Chamber candidates also suffered the Chamber's back-firing support. The Chamber's ads for Mississippi's Chief Justice enabled her opponent to win 52%-48% by attacking her outside support. (That justice had served for 15 years and her challenger had raised only $9,000 as of mid- October). In addition, the Chamber's ads defeated another candidate running with her.6 Carrington buys the Chamber's inflated count and its self- congratulation, but its other candidates would have won without it.7 For example, the three Michigan incumbent Justices who were re-elected in landslides were not bought and are not controlled by the Chamber.
Carrington uses the kind of hyperbole that I call into question in an analysis of the myth of distortion and of a study slandering the Ohio Justices.8For him to disclaim any accusation that some campaign participants and the Page 491 judges they support are involved in bribery does not free him from the responsibility to be careful.
Some readers may see little significance in the errors that Carrington makes, but I repeat: I submit this comment only because of the need for serious pause in considering what he writes here-- apart from his fascinating account of Frederick Grimke and the 19th century Barnburners.9
The errors are set forth not in order of importance, but in the order they appear:
Page 472: "The breakout event [in greater interest in selecting members of state supreme courts] occurred in California in the 1970s when voters reacted strongly against a series of decisions of their state supreme court."10What occurred in the 1970s was a 1978 effort by the deputy district attorneys of Los Angeles County to challenge local incumbent trial judges. The successful campaign in 1986 to deny retention to Chief Justice Rose Bird and her colleagues Joseph Grodin and Cruz Reynoso was fueled entirely by only a single series of decisions: Bird's unyielding refusal to uphold any death sentence. Also, the implication that that event was driven by interest groups able to "buy" judicial seats is refuted by the facts about the sources of funds in that campaign.11
Carrington also attacks the California, New Jersey, and Ohio high courts for "[f]ollowing the Warren Court [into making] dramatic, high visibility decisions," which brought on the contests to "buy" "control" of such courts.12The attack is hit-and-run, lacking explanation of the kinds of decisions he has in mind. In Carrington's last foray against judicial independence, he emphasized one example: courts' decisions that state constitutions require changing school finance from an exclusively property-tax basis. His attack and my response-which include noting that there is much to be said for such decisions and that fourteen state courts have agreed with California and New Jersey (since that time, add Ohio and a New York trial judge.)13 His attack is not strengthened by repeating it, especially with no examples to explain-or justify-his position.
Page 473: "The medical profession in Texas has come to take a serious interest in judicial politics for the purpose of influencing the development of Page 492 malpractice law. What we have established in high court elections is interest group politics in its most unwelcome forms."14
That first sentence retreats from Carrington's statement submitted for the Symposium, which was: "I have been told that the most powerful force in Texas judicial politics at this time is the medical profession; that is plausible."
Given the following facts, query whether he retreats far enough. The total sum contributed to Texas judicial campaigns in the 1994, 1996, and 1998 election cycles is $17,824,702 according to the National Institute on Money in Politics.15 Although the Institute has not yet completed analysis of those contributions, of the $12,568,685 (71%) that it has analyzed, it found that the entire Health Sector -from doctors and their PACs, through nurses, hospitals, medical supplies manufacturers, etc.-- gave $461,697 or under 5%;16 The Institute believes it extremely unlikely that that proportion will change materially when the analysis is complete.17 I am surprised that members of the Health Sector contributed so little, but even if the Institute's figure errs, the error would have to be massive to justify Carrington's original statement or his fudged implication. Again, he has hit and run with his comments, with no effort to substantiate.
Page 474: "Often, lawyers or litigants who are likely to appear before the judge constitute large proportions of the contributions to judicial candidates."18 "Often" is then followed by two examples (attacking two Ohio Justices) and this generalization: "At best, campaign fundraising by judicial candidates is unseemly and degrading. At worst, it tempts those with an interest in a state's law to try to buy a high court."19
One of the leading myths about judicial campaigns is that they are primarily funded by lawyers. The most recent source on judicial campaign finance found this:
Often attorneys account for large proportions, often even over 75%, of the contributions to judicial candidates; but it is also true that often attorneys' contributions total only a minor fraction. Given the diversity of our jurisdictions, of Page 493 candidates and of campaigns, the lack of a general pattern is no surprise. 20
That source gave episodic data (which is all we had at that time) on thirteen States.21
As for contributions by "litigants who are likely to appear," again, what is Carrington's basis? We do know that even judicial campaigns rely to a varying but often huge extent on the usual diversity of contributors, from lawyers to friends, family, and often supporters drawn by links of party, ethnos, gender, and ideology.22
Of course there are episodes of contributions by lawyers that are troublesome indeed, such as the following example, which involved one law firm, the Ohio Supreme Court, and a suit for damages against Conrail.23Plaintiffs' daughter had been killed by a train when she drove onto a grade crossing despite closed gates and flashing lights.24 The extensive proceedings in Ohio courts involved three trials: a jury trial for compensatory damages,25 a bench trial for punitive damages,26 and then after an appeal,27 a jury trial for punitive damages. Another appeal then followed,28 followed by a final appeal in the Ohio Supreme Court.29 That appeal was sought by both sides after the second jury had awarded punitive damages of $25,000,000, reduced by the trial judge to $15,000,000.30
Plaintiff was represented by Murray & Murray Co., a...