Judicial elections: judicial independence at risk

National Voter, Sept-Oct, 2002 by Alfred P. Carlton, Jr.

A commitment to preserving the uniquely American judiciary is nothing new for Americans. One of the charges against King George in the Declaration of Independence was that "He has made Judges dependent on His will alone, for the Tenure of their Offices, and the Amount and payment of their Salaries." Article III of the United States Constitution, allocating judicial power to the judiciary with life tenure and salary protection, institutionalizes judicial independence as the "bulwark of the republic," in the words of Alexander Hamilton in The Federalist Papers. The legacy of these formative years and the imbedded principles set forth in Marbury v. Madison (1803) have resulted in a tradition of judicial independence that has permitted the American judiciary to freely exercise its constitutional obligation to resolve difficult issues when required for the good of the republic.

This legacy of over 200 years teaches us that judicial independence requires constant vigilance. Its ongoing strength results from the maintenance of a dynamic balance between the judicial, legislative and executive branches. Preserving judicial independence is not a partisan or philosophical issue. Judicial independence is an established American institution.

Recent developments, including the rising cost of state judicial campaigns and unregulated spending by narrow special interests in those campaigns, represent a troubling trend in our justice system. The cost of judicial campaigns has doubled in less than a decade, with a 61 percent increase in contributions to state supreme court campaigns between 1998 and 2000. This November as voters in 33 states go to the polls to select judges on their highest courts, the 2002 elections could set a new record for judicial campaign fundraising.

Surveys of the public nationally and in several states reveal that the spending has a distinct and significant impact on public perceptions--and it is not good. National surveys of voters and state judges commissioned by the Justice at Stake Campaign show that 76 percent of voters and 26 percent of judges believe that campaign contributions have at least some influence on judicial decisions. Remarkably, a survey in Texas indicates that not only does a majority of the public perceive that campaign contributions have an effect on judicial decision making, but so do almost half of Texas judges. People perceive that justice is for sale when judges must solicit campaign funds.

Longstanding restrictions on political speech by judicial candidates are also falling by the wayside. By a 5-4 vote, the Supreme Court of the United States ruled in Republican Party of Minnesota v. White (No. 01-521, issued June 27, 2002) that Minnesota's canon prohibiting judicial candidates from announcing their views on disputed legal and political issues violates the First Amendment. This decision is likely to result in judicial campaigns that center on candidates' views on hot-button issues, thereby endangering the impartiality of the eventual winner.

In response to these troubling trends, the American Bar Association (ABA) and the many state, local and territorial bar associations nationwide are addressing the corrosive effects of money and politics on the public's trust and confidence in the judiciary through a comprehensive program of policy recommendations and public education. The ABA is devoted to preserving and strengthening judicial independence and has been since its founding almost 125 years ago. Indeed, as officers of the court, all attorneys should consider it a professional obligation to protect and maintain the independence of our judiciary.

To address the negative effects of inappropriate and unjustified criticism of judges, the ABA has developed a protocol to assist state and local bar associations, and other interested organizations, in responding to personal attacks and criticism that lead to diminution of public trust and confidence in the courts. This protocol seeks to ensure that judges, who may be constrained by ethical obligations from answering inappropriate critiques, find support from those who understand the important role that they play.

The ABA also has adopted model Standards for State Judicial Selection. Designed to enhance the judicial selection process through the use of a credible, deliberate body to evaluate judicial aspirants, the Standards bring elements of merit selection, a preferred selection mechanism, to judicial elections--creating a type of "merit election." Further, the ABA Commission on Public Financing of Judicial Campaigns recently issued the seminal report on the topic. The Report led to adoption of ABA policy favoring public financing of judicial campaigns, which is gaining attention and support in a number of jurisdictions.

These innovative approaches to the judiciary call for a reevaluation of our model for judicial selection in the states. Judicial elections may be here to stay, but they are fraught with problems. Merit selection, while preferable, may not be politically viable in many jurisdictions. A new approach to 21st century judicial selection in the states is warranted. The ABA has, therefore, convened a presidential commission to review 21st century state judicial selection. The commission consists of able representatives of a wide assortment of interests both within the legal profession and without. Business, the academy, the non-profit sector and other viewpoints will be represented. Abner Mikva and William Sessions, two unassailable public servants, serve as honorary co-chairs of this effort.