SCOTUS decision could trickle change down to states

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Meryl Chertoff
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      Meryl Chertoff

      Meryl Justin Chertoff is Co-Director of The Aspen Institute's Justice and Society Program. She is also Director of the Sandra Day O'Connor Project on the State of the Judiciary at Georgetown Law, an academic institute that studies and educates the public about federal and state courts, and Adjunct Professor of Law at Georgetown Law.

      She served in the Office of Legislative Affairs at the Federal Emergency Management Agency (FEMA), participating in the agency's transition into the Department of Homeland Security in 2003. Ms. Chertoff has also been a legislative relations professional, Director of New Jersey's Washington, D.C. Office under two governors, and legislative counsel to the Chair of the New Jersey State Assembly Appropriations Committee. She is a magna cum laude graduate of Harvard-Radcliffe College and earned her J.D. from Harvard Law School. She practiced law for a number of years in New York City and New Jersey, and served as law clerk to Honorable Myron H. Thompson (U.S. District Ct., M.D. Ala).

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.

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  • kristiej

    Niel Hitler!!

    Those commie Liberals. Let’s eliminate them. More guns. Obama is a mustachio version of non-citizen hypocrite.

    Let’s stockpile and amass our guns.

    Less government, less libroites.

    Bare arms.

    What do I really want. Life, Liberty, the pursuit of happiness. Common sense.

    Oh my God!!! I’m a liberal democrat speaking like Glen Beck. What has happen to me????

    My response to the Supreme Court Ruling – this is my true response. Left or right —-let’s united. I’m main street. – I’m mad. I’m not a soldier. Now I need to be.

  • scoffer

    Liberal bunk.
    The SCOTUS ruling is the first step in the great civil rights issue of our times. For hundreds of years, a corporation’s humanity has been denied by lawmakers and courts. Thanks to our Supreme Court, a corporation is now counted among the people, as in ‘WE THE PEOPLE IN ORDER TO FORM A MORE PERFECT UNION,’ blah, blah, blah.
    The door has been opened, and we will trample the cotton-brained liberals, as we smash through it, demanding full citizenship. There are some who say corporations should have the right to bear arms, the right to enroll their employees in the National Guard and thus place them in the service of our government to quell domestic disturbances. My proposals are much more modest. First we must demand only one more thing because from this one thing all else will flow. Corporations are people and people have the right to vote. As the great H. L. Hunt proposed over forty years ago, corporations must have the right to vote and have as many votes as they have shareholders. Only then will we have true representation for the people who create the wealth of this nation.
    My second demand is to change our language. A corporation is no longer an ‘it’. A corporation must be has to be referred to as a ‘he’ or a ‘she’. In honor of the five Justices brave enough to go flaunt hundreds of years of lawmaking and judicial decisions, I propose that corporations henceforth be referred to as ‘he.’

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