Don't pass up historic opportunities

A few thoughts came to mind when I read about the U.S. Supreme Court's ruling in Caperton v. Massey, which Jonathan covered here yesterday. The case involved a West Virginia Supreme Court judge who refused to recuse himself from a trial, even though the chief executive of one of the litigants had spent $3 million to help the judge get elected. In a 5-4 ruling, the Supreme Court found that due process requires a judge to recuse himself if large campaign contributions create the appearance of partiality.

Like Scarecrow at the Oxdown Gazette, I found the hackery of Chief Justice John Roberts' dissenting opinion revealing.

Mostly I was shocked to learn from this New York Times article that judges are still elected in 39 states. It's bad enough that money corrupts our elections for the legislative and executive branches. Judicial elections create opportunities for "legalized bribery" as well as incentives for judges to let public opinion unduly shape their interpretation of the law in high-profile cases.  

I agree with the Des Moines Register's editorial board:

The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

Iowa voters did away with judicial elections by approving an amendment to the state constitution in 1962. The governor appoints judges at all levels. The public has input through nominating commissions that evaluate potential appointees before forwarding a short list to the governor. In addition, judges can be removed either by the Iowa Supreme Court for disability or good cause, or by the voters through periodic retention elections.

We are fortunate that Iowans recognized the wisdom of scrapping judicial elections when the constitutional amendment was on the ballot. This page on the website of the American Judicature Society lists failed judicial reform efforts in numerous other states. As you can see, state legislators and voters have rejected similar proposals despite years of hard work by reform advocates.

Let this be a lesson for policy-makers at all levels to seize the chance to make big changes for the better, such as the currently favorable environment for health care reform. Opportunities to ditch deeply flawed but entrenched systems don't come around every year, every election cycle or even every decade.

Tags: health care reform, SCOTUS, Supreme Court (all tags)



Re: Don't pass up historic opportunities

Here in Illinois, judges are elected, but I don't see the improvement by having them appointed by Rod Blagojevich or George Ryan. Although, Rod probably wishes he had appointed the judge in his own trial.

by antiHyde 2009-06-10 06:18PM | 0 recs
if nominating commissions

could screen the candidates sent to the governor, you'd have less opportunity for corruption, even if the governor was no good.

I can't see how judicial elections in any way serve the interest of an independent judiciary.

by desmoinesdem 2009-06-10 06:21PM | 0 recs
Re: if nominating commissions

Neither do I, Desmoinesdem. My point was that all methods are broken if you have a thoroughly corrupt state government.

by antiHyde 2009-06-11 03:49PM | 0 recs
Re: Don't pass up historic opportunities to revise

"...the Supreme Court found that due process requires a judge to recuse himself if large campaign contributions create the appearance of impartiality."

I think you mean the appearance of partiality, not impartiality.  Or to put in another way, the appearance of a conflict of interest.

by Swan 2009-06-10 06:35PM | 0 recs


by desmoinesdem 2009-06-10 06:53PM | 0 recs
Re: Don't pass up historic opportunities

In California, judges are appointed, but have to stand for election after a number of years (don't know how many).  Usually they win, but very few on this blog remember the Rose Bird recall.

And by the way on health care, can someone tell Sen. Conrad to zip it?

by esconded 2009-06-10 07:59PM | 0 recs
Unfortunately, trust "progressives"

To use any excuse to argue for less democracy.

The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

This is bullshit.  Really, would the Des Moines Register - or anyone - argue that the solution to the problem of privately-financed legislative campaigns should be the . . . elimination of legislative elections?  No.  And the "solution" doesn't follow here, either.  

What does follow, and what progressives should support, is public financing of judicial elections.  

But why support such an obvious reform when you could argue against democracy itself.

Honestly.  Have the reformers not noticed how judicial nominations really work?  Because I have.  It's a circus, and it has nothing to do with justice.  It's cronyism, it's pandering to the base, and it's disgusting.

Because the people have no influence over the process, few pay attention.  Those who do are partisans.  As such, the incentive is for the executive - the governor, the president - to pick a partisan.  Thus Thomas, Roberts, and Alito, and the dysfunctional judiciary they represent.

How could democracy be worse?  

In Georgia, we still elect judges.  It's not perfect, but compared to the circus in Washington, D. C., it's preferable.  

by Drew 2009-06-10 09:01PM | 0 recs
Re: Unfortunately, trust "progressives"

Even if you publicly finance, you will find it very hard to constitutionally restrict expenditures by outside groups, which is exactly what happened in the West Virginia case.  It's the same problem we are currently facing with McCain-Feingold on the federal level.

by Steve M 2009-06-10 09:30PM | 0 recs

The solution to the problem of the influence of money over elections is not the elimination of elections.

The problem with this argument is that it argues not against judicial elections specifically but against any election at all.  As such it's fundamentally flawed, and I think it should be rejected.

Instead, we should address this problem in the same way we would address a similar problem in any other election - by reforming the process, not by eliminating the election itself.    

by Drew 2009-06-10 10:07PM | 0 recs
when judges rule on minority rights

I don't want them to be worried about the next election.

When judges are ruling on law enforcement handling of some criminal prosecution, I don't want them to be worried about the next election.

If the popularly elected legislature has passed an unconstitutional law, I want judges to be able to rule on what the constitution says, rather than be worried about the next election.

I support public financing for other elections, but I think judges should be appointed.

Do you support elections for all federal judges too, right up to the Supreme Court?

by desmoinesdem 2009-06-11 04:42AM | 0 recs
Strangely enough

None of those arguments against judicial elections has anything to do with this case.  So effectively, were arguing that we should use this case not to solve the problem presented by this case but to forward an unrelated pre-existing agenda.  That's not very honest.

That said, yes I do think that the judiciary should be elected.  Your arguments against are, honestly, based on a fantasy judiciary that has never and will never exist.  It is no more a reliable defender of the minority than the legislature or the executive.  Nor is it any friendlier to criminal defendants.

The truth is that if the people are stupid and evil then there is no way to prevent their stupidity or evil from infecting the judiciary. A convoluted appointment process cannot confer virtue.  It merely ensures a different sort of bias.

In any case, why shouldn't we trust the people to choose the judiciary?  They aren't evil or stupid.  They are as capable of examining the records of judges and the issues before the court as they are of examining the records of legislators and the issues before the legislature.

Indeed, Why is the assumption that the people are evil and stupid, and that the good and wise judiciary should be protected from them?  The last chief justice began his career by denying Latinos the right to vote.  The current conservative court has a similar pedigree.

They are allowed to continue to pervert the Constitution because they don't have to answer for their behavior.  Maybe they should.  

by Drew 2009-06-11 11:11AM | 0 recs
Re: Don't pass up historic opportunities

I couldn't agree more - judges should be appointed with advice and consent from the legislature (the state senate for bicameral states).

My only caveat, I'd prefer appointment for a set term (say 10-20 years) rather than for life.

Imagine the pressure on a judge in a high profile criminal case where the public is out for blood, but a correct reading of the law would lead to dismissal.  By ruling correctly the judge would virtually assure electoral defeat.  How many have the personal courage to do the right thing?

by LanceS 2009-06-11 04:15AM | 0 recs
Re: Don't pass up historic opportunities

Appointed judges are more deeply conservative than elected judges. I've seen both types on the bench. elected judges [minus the money problem] are far better. appointed judges only have to be approved by a handful of people all of whom are political. there's no scientific evidence that elected judges are more or less corrupt that appointed judges.

by stevelaudig 2009-06-11 01:37PM | 0 recs


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