The decision of the Supreme Court in Citizens United v. FEC has set off a fundraising sprint as the country enters the 2010 election cycle. The court’s majority opinion, which opens the door to increased independent expenditures for elections at all levels, may get the law right. But it spells pure trouble for state court judicial elections.
Americans spend little time thinking about how state court judges are selected, even though 100 million cases are heard in state courts each year, according to the National Center for State Courts. Most of the small claims, traffic, juvenile, divorce and custody cases—the cases most regular folks get caught up in—are handled in these courts. Yet the United States is the only country in the world to elect a substantial number of its judges. Thirty-nine states select at least some of their judges by election, and in a number of states, judges are elected by contested ballot, often running on a party line.
For years, judicial elections were relatively sedate affairs. Then a pair of developments touched off what some legal scholars have termed “a perfect storm.” One was the U.S. Supreme Court’s 2002 decision in the case of Republican Part of Minnesota v. White. Until White, candidates for judicial office had often stood behind the shield of state canons of judicial ethics—limitations imposed by the judges’ governing organizations—so that they could decline to answer questionnaires presented them by interest groups, seeking to solicit the judges’ views on a spectrum of policy issues. Many of these questionnaires amounted to inquisitions as to how the prospective judges would rule in particular cases. White ruled that one key part of Minnesota’s canons of judicial ethics violated the First Amendment rights of candidates.
The infusion of money made possible by campaign finance reform didn’t help matters. While strictly limiting direct contributions to the campaigns of judges, the reforms opened the spigot on independent expenditures through 527 organizations. States’ refusal to grasp the nettle on tort reform added to the problem. Trial attorneys battled local chambers of commerce and national corporate interests in an escalating arms race to pick their favorite candidate.
According to Justice at Stake, an advocacy organization, from 1999–2008, state supreme court candidates raised $200.4 million nationally, more than double the $85.4 million spent in 1989–98. The tone of judicial campaigns sunk lower as spending rose. Campaign ads in one state accused a state supreme court incumbent of sleeping on the bench, in another state ads revolved around release of a child murderer, and in still another an ad showed cartoons caricatures of judges dancing in the pocket of a business executive.
Public confidence in the judiciary has been shaken. According to one survey by the Annenberg Public Policy Center, 69 percent of the public thinks that raising money for elections affects a judge’s rulings to a moderate or great extent. Judges themselves worry that campaign contributions may affect their judgment knowingly or unknowingly. Clearly all this money contributes to a perception that the judges are politicians in robes. In last term’s Caperton v. Massey Coal Company case, the U.S. Supreme Court ruled that in an extreme case—a $5 million contribution to a West Virgina Supreme Court candidate’s campaign—contributions could even give rise to a due process violation.
The Supreme Court’s decision in Citizens United v. FEC can only lead to further excesses. By removing the last remaining restrictions on independent expenditures by corporations and labor unions, the decision will permit massive new cash infusion into the already spiraling judicial campaign arms race.
In a recession, these massive expenditures of corporate and union funds on state court judicial races raise serious questions of fiduciary responsibility. Shareholders and dues-payers alike should be examining how their funds are being used. But the very crisis which is brewing creates the potential for a real game-changer: altering the method of picking judges. Stakeholders should pay serious attention to the option of changing the rules by passing new state laws and amending state constitutions.
The federal judicial selection system, where all judges are appointed, does not seem politically feasible for most states. Yet there is a tested alternative to contested elections, a system utilized in 24 states for at least some of their judicial selection. Known as “merit selection,” it’s a system where judicial candidates are initially screened by a judicial selection commission. The commission’s picks are submitted to the state’s governor, who makes his or her pick. Then, after a term of service, the judge is submitted to the voters for an up-or-down election. This process retains the element of accountability that has been historically been appealing to state voters.
Critics of merit selection call it a pretext for trial lawyers to capture the selection process. They charge that commissions are dominated by the state bar associations, which, they say, are in turn dominated by trial lawyers. There may be some truth to this, but advocates of merit selection have found a solution. It is embodied in the system used in Arizona, now being vigorously championed by retired U.S. Supreme Court Justice Sandra Day O’Connor as a national model. As a state legislator, O’Connor shepherded the first merit selection plan through Arizona’s state Legislature. Legislative revisions have made the system increasingly transparent over the years.
Arizona requires that its judicial selection commissions be composed of both lawyers and non-lawyers, with lay members dominating the mix. Proceedings of the commissions are open to the public. Every effort is made to eliminate undue influence by any interest group, or even the appearance of such influence.
In a little-noticed, but potentially significant development late last year, the U.S. Chamber of Commerce’s Institute for Legal Reform recognized the Arizona merit selection system as a best practices model. After years of pitched battles in the states through the 527s, the Chamber may finally have realized that its members’ dues are not best spent on these state races.
Why isn’t every state clamoring to adopt Arizona’s system? A number of states have tried and failed to adopt merit selection through ballot initiatives. In November, with Harry Reid’s re-election bid dominating the top of the ticket, voters in Nevada will be asked to consider whether to move from contested judicial elections to merit selection. Nevada will have the chance to set an example for other states. After Citizens United, it seems like a timely step.
Meryl Chertoff is Co-Director of the Justice and Society Program at The Aspen Institute. From 2007-2009 she directed the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown Law.