SHOULD WE ELECT OUR JUDGES? LEARNING FROM THE AMERICAN EXPERIENCE.
American State Judges are Elected
State Supreme Courts
According to a report of the American Bar Association (ABA), “a total of 38 states in the United States have some type of judicial elections for the position of justices of the state supreme courts”. (Report of the ABA Commission on Public Financing of Judicial Campaigns, dated July 23, 2001, available at the ABA official website [http://www.manningproductions.com/ABA245/OMK/fact_sheet.html], citing “Justice at Stake Campaign, National Surveys of American Voters and State Judges, October 2001 - January 2002” available at www.justiceatstake.org).
Seven (7) states have partisan elections (AL, IL, LA, NC, PA, TX, WV). All judges in both Illinois and Pennsylvania run in uncontested retention elections for additional terms after winning a first term through a contested partisan election).
Fourteen (14) states have nonpartisan elections (AR, GA, ID, KY, MI, MN, MS, MT, NV, ND, OH, OR, WA, WI; Ohio and Michigan have nonpartisan general elections, but political parties are involved with the nomination of candidates, who frequently run with party endorsements).
Seventeen (17) states have uncontested retention elections after initial appointment (AK, AZ, CA, CO, FL, IN, IA, KS, MD, MO, NE, NM, OK, SD, TN, UT, WY). All judges in New Mexico are initially appointed, face a contested partisan election for a full term, and then run in uncontested retention elections for additional terms).
The remaining 12 states grant life tenure or use reappointment of some type for their highest courts (CT, DE, HI, MA, ME, NH, NJ, NY, RI, VT, VA, SC)
State Intermediate Appellate Courts.
Thirty-nine (39) states have intermediate appellate courts.
Six (6) states have partisan elections (AL, IL, LA, NC, PA, TX). Eleven (11) states have nonpartisan elections (AR, GA, ID, KY, MI, MN, MS, OH, OR, WA, WI). Fourteen (14) states have uncontested retention elections after initial appointment (AK, AZ, CA, CO, FL, IN, IA, KS, MO, NE, NM, OK, TN, UT). Eight (8) states grant life tenure or use reappointment of some type for their intermediate appellate courts (CT, HI, MD, MA, NJ, NY, SC, VA). Eleven (11) states do not have intermediate appellate courts (DE, ME, MT, NV, NH, ND, RI, SD, VT, WV, WY).
State Trial Courts
A total of 39 states hold elections - whether partisan, nonpartisan, or uncontested retention elections - for trial courts of general jurisdiction. Eight (8) states have partisan elections for allnonpartisan elections for all general jurisdiction trial court judges (AR, CA, FL, GA, ID, KY, MD, MI, MN, MS, MT, NV, NC, ND, OH, OK, OR, SD, WA, WI). general jurisdiction trial court judges (AL, IL, LA, NY, PA, TN, TX, WV; see note above on IL and PA). Twenty (20) states have Seven (7) states have uncontested retention elections for all general jurisdiction trial courts (AK, CO, IA, NE, NM, UT, WY). Four (4) states use different types of elections - partisan, nonpartisan, or retention - for general jurisdiction trial courts in different counties or judicial districts (AZ, IN, KS, MO). Eleven (11) states grant life tenure or use reappointment of some type for all general jurisdiction trial courts (CT, DE, HI, ME, MA, NH, NJ, RI, SC, VT, VA).
Money in Judicial Elections
According to the ABA report, “state supreme court candidates raised a total of $45.6 million during the 2000 judicial elections, a 61 percent increase over the amount raised by candidates in 1998”. Lawyers and business interests “account for 49 percent of all contributions to supreme court candidates”. Partisan judicial elections are by far the most expensive, “with candidates raising an average of $380,724 in 2000 (as opposed to an average of $107,388 raised by supreme court candidates in nonpartisan elections)”. (Id., citing "The New Politics of Judicial Elections," Brennan Center for Justice at NYU and National Institute on Money in State Politics, published by the Justice at Stake Campaign, February 2002.)
Trial lawyers and business groups are spending more on unregulated "issue advertisements" in judicial elections, the report stated. It added that “the Litigation Fairness Campaign, sponsored by the U.S. Chamber of Commerce and the Business Roundtable, hopes to raise $25 million, primarily for television advertisements, in at least eight states holding supreme court elections in 2002”; that “trial lawyer organizations and unions in ‘battleground’ judicial election states are expected to spend significant amounts, as well”; that “because expenditures by groups that do not expressly advocate the election or defeat of a candidate are not subject to disclosure, precise figures on interest group spending are not available”. (Id., citing Peter H. Stone, "The Blitz to Elect Business-Friendly Judges," National Journal, February 16, 2002.)
Waning Public Confidence in the US System
The ABA report cited the implications to the independence of the American Judiciary of the judicial election system and the campaign contributions being given by interest groups to judicial candidates. It stated that “seventy-six percent (76%) of voters, and 26 percent of state judges, believe that campaign contributions made to judges have at least some influence on their decisions’; that “sixty-two percent (62%) of voters-including nearly 90 percent of African-American voters-feel that ‘there are two systems of justice in the U.S. - one for the rich and powerful and one for everyone else’ “; that “nine in 10 voters, and 8 in 10 state judges, say they are quite concerned about special interest groups buying advertising to influence the outcomes of judicial elections”.
Judicial Independence
Judicial independence means “freedom from direction, control, or interference in the
operation or exercise of judicial powers by either the legislative or executive arms ofgovernment.” (See: www.abanet.org/media, citing Legal Words Dictionary,
Reed International Books,
available at http://www.butterworths.com.au/legalwords/html/000801.htm).
In the 1997 ABA report entitled An Independent Judiciary: Report of the Commission on
Separation of Powers and Judicial Independenc, the ABA defined judicial independence as follows:
“A truly independent judiciary is one that issues decisions and makes judgments which are respected and enforced by the legislative and executive branches; that receives an adequate appropriation from Congress; and that is not compromised by politically inspired attempts to undermine its impartiality…. Judicial independence includes the independence of an individual judge as well as that of the judiciary as a branch of government. Individual independence (otherwise known as decisional independence) is both substantive, in that it allows judges to perform the judicial function subject to no authority but the law, and personal, in the sense that it guarantees judges job tenure, adequate compensation and security.” (at ii-iii).
Judicial independence is “the freedom we give judges to act as principled decision-makers”. It is intended “to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment”. When truly independent, judges are “not influenced by personal interests or relationships, the identity or status of the parties to a case, or external economic or political pressures.” (See: www.abanet.org/media, citing Brennan Center for Justice Resources: Questions and Answers about Judicial Independence, posted on http://www.brennancenter.org/resources/resources_jiqanda.html 2001. See also: League of Women Voters: Creating A Just Society: Judicial Independence, available at http://www.lwv.org/join/judicial/ 2001).
Judicial independence is “widely considered to be a foundation for the rule of law”. It has three characteristics:
First, it is impartial. Judicial decisions are not influenced by a judge’s personal interest in the outcome of the case…Second, judicial decisions, once rendered, are respected…The third characteristic of judicial independence is that the judiciary is free from interference. Parties to a case, or others with an interest in its outcome, cannot influence the judge’s decision.” (Id., citing The World Bank Group – Legal Institutions of the Market Economy. Judicial Independence: What It Is, How It Can Be Measured, Why It Occurs. Posted on http://www1.worldbank.org/publicsector/legal/judicialindependence.htm 2001; American Judicature Society: Center for Judicial Independence. What is Judicial Independence? http://www.ajs.org/cjiJI.html 2001; and United Nations Office of the High Commissioner for Human Rights. Basic Principles on the Independence of the Judiciary. [Endorsed by UN General Assembly 1985], available at http://www.unhchr.ch/html/menu3/b/h_comp50.htm
Following the principle that the judiciary should be insulated from “the influence of other
political institutions, interest groups, and the general public”, James Madison in The Federalist had declared: “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” (Id., James Madison. The Federalist No. 78, at 469. See also: G. Alan Tarr. “Judicial Independence and State Judiciaries,” in Judicial Independence: Essays, Bibliography, and Discussion Guide [Teaching Resource Bulletin #6]. Chicago: American Bar Association Division for Public Education, 1999).
A strong judicial institution is “a means toward securing the basic goals of people: human liberty and a reasonable level of prosperity.” (Id., citing Hon. Stephen G. Breyer. “Comment: Liberty, Prosperity, and a Strong Judicial Institution,” in Judicial Independence and Accountability, Law and Contemporary Problems, Volume 61, Number 3 [Summer 1998]). “It would be folly to squander this priceless constitutional gift to placate the clamors of benighted political partisans.” (Id., citing Bruce Fein and Burt Neuborne, “Why Should We Care About Independent and Accountable Judges,” Judicature, Volume 84, No. 2 [Sept-Oct 2000]).
It is said that “the law makes a promise — neutrality” and “if the promise gets broken, the law as we know it ceases to exist …. all that’s left is the dictate of a tyrant, or perhaps a mob.” (Id., citing Hon. Anthony M. Kennedy. Address to American Bar Association symposium, Bulwarks of the Republic: Judicial Independence and Accountability in the American System of Justice, held December 4-5, 1998, Philadelphia, Pennsylvania).
John Marshall once said: “The independence of all those who try causes between man and man, and between man and his government, can be maintained only by the tenure of their office. I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent Judiciary.” [Id., citing John Marshall, address to the Virginia State Convention of 1829-30. Proceedings and Debates of the Virginia State Convention of 1829-30 at 616 (1830). See also: “Report of the Task Force on Federal Judicial Selection,” in Uncertain Justice: Politics and America’s Courts. Reports of the Task Forces of Citizens for Independent Courts. New York: The Century Foundation Press, 2000 (p. 13); Mistretta v. United States, 488 U.S. 361, 407 (1989)].
Action of the American Bar Association (ABA)
Over 80 percent of state judges face election of some sort. Federal judges are appointed. The ABA has long preferred “merit selection of judges, a system under which judges are appointed after being screened by an impartial nominating commission”. In addition, the ABA adopted policy earlier this year “urging states that continue to elect judges to consider public financing of judicial campaigns”. (The ABA is “the largest voluntary professional membership association in the world with more than 400,000 members” and it “provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public”). [See: Poll Confidence in Judiciary Eroded by Judges’ Need to Raise Campaign Money, available at http://www.manningproductions.com/ABA245/OMK/release.html).
The ABA suggestions were in reaction to the poll conducted by Harris Interactivesm established that, “72 percent of Americans are concerned that the impartiality of judges is compromised by their need to raise campaign money. Thirty-five percent of the respondents said they were ‘extremely’ or ‘very’ concerned”. (id.).
Alfred P. Carlton Jr. of Raleigh, N.C., incoming president of the ABA for 2002, has stated publicly: "We must defuse the escalating partisan battle over America's courts. Millions of dollars are being spent to 'control' courts in some states much the same way political parties control legislative and executive branches of government." (id.).
Carlton has acknowledged that "he challenge is to find a way for states that want to continue to elect judges to allow judicial candidates to freely express themselves on political issues in a way that does not compromise their impartiality once they are on the bench". (id.). He added that “although, according to the poll, a majority of people think elected judges are more fair and impartial than appointed judges, the survey (however) shows almost three out of four people believe that raising campaign money compromises impartiality of the judiciary” and that “the public strongly favors nonpartisan elections - by a 63 to 24 margin”. (id.). He added that the ABA “has an essential role in promoting judicial selection that minimizes the escalating politicization". (id.).
Public Financing of Election Campaigns of Judicial Candidates
The ABA has urged the public financing of judicial campaigns amidst the growing public cynicism about the US courts citing the report of the ABA Commission on Public Financing of Judicial Campaigns. (See: http://www.abanet.org/media/jul01/judicial.html). The commission report has stated:
"The public sees the same patterns of financial contributions to judges, and issue advertising related to judicial campaigns, that have created cynicism about elections for our political leaders. That cynicism is transferred to our courts and taints the concept of judicial independence. We cannot afford to allow our legal system to be perceived as for sale to the highest campaign donor, or as subject to intimidation by attack advertising by special interest groups. We must stem this tide before it rises any further.
It is an affront to the American justice system that electioneering gives the impression justice is for sale. Public funding is one method by which we can restore public trust and confidence in a system that is truly independent and impartial. It can reverse the corrosion that taints all our courts when judicial candidates must turn for campaign resources to the very individuals and organizations that have an interest in the outcomes of cases those candidates may decide as judges.". (id.).
The commission report adopted the following principles for public financing for judicial campaigns: “Public financing should generally start with the highest court seats. Public financing programs should provide candidates with funding sufficient to cover the full cost of campaigning. States should limit participation to serious candidates. Funding should be conditioned on commitments to spend it only on legitimate campaign expenses and not raise money from private sources. Public financing must be funded from a stable and sufficient revenue source.” (id.).
Carolyn Jefferson-Jenkins, president of the U.S. League of Women Voters and a member of the commission, pointed to “escalating campaign costs in judicial races in some parts of the country”. She reported that “in Michigan in 1994, the winning supreme court candidate raised $180,000; by 1998, the winner’s war chest was $1 million”; that “in Pennsylvania in 1987, two candidates for supreme court raised a total of $523,000; by 1995 the tab was up to $2.8 million”; that “in Illinois, three supreme court candidates raised more money in primary elections than any candidate had ever raised previously in their entire campaign.” (id.). She added that "limited resources for suddenly expensive judicial campaigns creates a perception of impropriety” and that “regardless of the merits of a case, a judge who decides in favor of a contributor appears to be paying a political debt". (id.).
Rethinking Judicial Elections
Prof. Charles Geyh in an article published by the Indiana University Law Journal has criticized US judicial elections thus:
“xxxx.
The unprecedented sums that sitting justices must now raise in order to fend off challenges to their retention or re-election suggests that judicial elections have, indeed, become ground zero in the political battle to influence judicial decision-making. The cost of an average supreme court race has increased by more than 100% since 1994. In the 2000 election cycle, nine supreme court races cost over a million dollars each. The escalating cost of judicial elections has precipitated additional judicial independence concerns. Judges who are forced to raise increasing sums of money to defend themselves against challenges to their continuation in office on the basis of their decisions in isolated cases must raise money from lawyers who will appear before them and from organizations with an interest in the outcomes of cases the judges decide. This, in turn, creates a public perception that judges may be influenced by the campaign contributions they receive, a point not lost on single-issue voter groups, who campaign for the defeat of incumbent judges on the grounds that those judges have not only made bad decisions but have done so to curry favor with special interests.
xxxx.
xxxx. Efforts at reform are hampered, however, by four political realities…
First, 80 percent of the public favors selecting judges by election. In other words, support for judicial elections is deeply entrenched, and that entrenched support may constitute the single most significant impediment to meaningful reform of the election process.
Second, despite widespread public support for judicial elections, as much as 80 percent of the electorate typically does not vote in judicial elections. When judicial elections are the only item on the ballot, voters stay home; and when judicial elections share the ballot with political branch races, there is a demonstrable "roll-off" in which a significant percentage of voters who cast ballots in the political branch races decline to vote in the judicial races.
Third, as much as 80 percent of the public - including many who cast ballots in judicial elections-are unfamiliar with and unable to identify the judicial candidates. This high level of voter ignorance may help to explain the equally high level of public apathy described in the second political reality: Voters who are unfamiliar with the candidates may see no point in voting.
Fourth, despite entrenched public support for judicial elections generally, 80 percent or more of the public perceives that when a judge is obligated to raise the monies needed to win election or re-election, she is influenced by the campaign contributions she receives.
xxxx.
To circumvent the impact of the first political reality, many states have sought to implement a "merit selection" process, in which the governor appoints judges from a pool of candidates approved by a commission that has evaluated them on the basis of merit. Even then, merit selection systems concede the inevitability of elections by requiring that judges so appointed periodically stand for retention elections. xxxx.
xxx.
xxxx (J)udicial elections are ultimately antithetical to judicial independence and unable to adequately promote judicial accountability. As far as judicial independence is concerned, my argument is relatively straightforward: Asking judges to decide cases impartially and without regard to the whims of the majority is fundamentally incompatible with a system that lets the whims of the majority decide whether the judge stays in office. Heroic judges can and have made impartial rulings in the teeth of public clamor, but the success of our judicial system should not be made to depend on all judges being heroes.
xxxx.
With judicial elections in a state of free-fall, the time is now to do something about it. If, for the reasons elaborated upon above, we accept that judicial elections are undesirable in principle, then our focus should be on devising a long-term strategy for phasing them out. Any such strategy should keep the following considerations in mind: Patience: The great social, political, and cultural movements of the 20th century did not run their course overnight. The women's suffrage movement, the anti-war movement, the civil rights movement, and the environmental movement all took decades and in some cases generations to run their cycle. Entrenched public support for judicial elections will not disappear quickly, and any movement to end judicial elections must take that into account.
xxxx. The theme of the judicial selection movement must look beyond "judicial independence," because the goal is not to protect judges so much as to protect the people whom judges serve. Our goal is to reassure the American public that they will get a fair shake in their courts, and, to that end, a more appropriate theme would be "to restore impartial justice." xxxx. (“Rethinking Judicial Elections” by Professor Charles Geyh, available at http://www.law.indiana.edu/front/special/geyh_nov02.shtml; underscoring supplied).
Prof. Geyh’s alternative, though, does not dispense with judicial elections, which he concedes is a reality in American democracy:
“xxxx.
xxxx. To provide a means for assessing political acceptability in the absence of elections, I would propose a modified federal model of judicial selection for the states. Like the federal model, state judges could be nominated by the governor and confirmed by the state senate or some other subset of the state legislature. Judges so selected would then serve either during good behavior, or for a single, lengthy term. Three modifications are in order: First, as disenchanted as I may be with judicial elections, the problem judicial elections pose is far more acute at the point of re-election than at the point of initial selection. If the public's support for judicial elections is unwavering, I would be prepared to forego gubernatorial appointment as a method of initial selection in favor of an election if it meant that judges once so selected would not later be put at risk of losing their tenure because they made one unpopular decision. Second, regardless of whether judicial candidates are elevated to the bench by means of appointment or election, it is imperative that the judges so selected possess the competence, experience, character, and temperament needed to do the job well. Accordingly, judicial candidates, however initially selected, should be limited to those approved by an independent judicial qualification commission, as I described earlier. Third, the federal model of judicial selection, upon which my proposal is based, is currently enveloped in a fog of uncertainty as to just how "political" the appointments process should be. As elections have become the last remaining means to promote political accountability of state judges in the wake of the public's gradual acceptance of an independent judiciary and a rejection of other accountability-promoting devices that threaten the judiciary's autonomy, so too the appointments process may become the one remaining means to promote political accountability in the state. Viewed in this light, a political appointments process is inevitable, because the public and the political branches will be loath to relinquish their last remaining means of control over the court's political landscape. It is likewise desirable, because it affords some measure of prospective accountability without interfering unnecessarily with subsequent judicial decision-making or institutional autonomy. xxxx.” (id.; underscoring supplied).
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