For years now, judicial reform groups have more or less resigned themselves to the reality that the public likes to elect its state judges and will fight any effort to appoint them instead.
The U.S. Supreme Court's Jan. 21 decision in Citizens United v. FEC may have altered that sober truth -- or at least has given reformers a glimmer of hope that it might. By supersizing possible corporate domination of judicial elections, the thinking goes, the Supreme Court's decision may finally make the public see how unseemly the elections are -- and move toward merit-based selection as an alternative.
"There is a silver lining to the decision," said Ohio Chief Justice Thomas Moyer, who has taken the lead in seeking change in Ohio's elective system for judges. "For those of us who have been trying to impress upon the public the deleterious effects of money in these elections, it helps us make the point that we need to get the money out."
"The time is now for change," said Rebecca Kourlis, former Colorado Supreme Court justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver. "I believe we can revitalize the merit-selection movement."
Kourlis spoke at a Georgetown University Law Center conference on judicial elections convened on Jan. 26 by retired Justice Sandra Day O'Connor. In retirement, working with Kourlis and others, O'Connor has become a merit-selection evangelist who energizes the movement by her sheer presence. O'Connor's calendar is dotted with meetings with local good-government groups across the country aimed at jump-starting the effort to change the way state judges are chosen. Currently, O'Connor said, more than 80 percent of state judges have to win a political election to gain or retain their seats.
'WARNING TO STATES'
At the conference, O'Connor said that Citizens United, in tandem with last year's Caperton v. A.T. Massey Coal Co., has focused public attention on the "mutually assured destruction" of the "funding arms race" that has made multimillion-dollar judicial campaigns commonplace. In the Caperton ruling, the high court said that, in some instances, a corporate campaign expenditure in a judicial campaign can be so large that due process requires a judge to recuse in pending cases involving the company.
"These two cases should be a warning to states that still choose judges by popular elections," said O'Connor. "These states should at least pause and think whether some change is needed. The time is now for opponents of merit selection to do a little soul-searching."
O'Connor, who retired from the high court in 2006, declined to comment specifically on Citizens United, but made it clear she was unhappy. "Gosh, I step away for a couple of years, and there's no telling what's going to happen."
What will happen as a result of Citizens United, she fears, is that "it looks like it's going to get worse before it gets better." She added, "I hope the attention given will speed the momentum toward re-examining the way we choose judges." Minnesota, Nevada and Ohio are all considering possible moves to merit selection, O'Connor said, while others are studying ways to bring more accountability and civility to judicial elections.
In Ohio, Moyer said, the most feasible alternative to contested elections is appointment at the outset, with incumbents standing for an up-or-down retention election without opponents. By the time a judge stands for retention, he or she can be evaluated by fair performance standards, which will help voters make informed choices. That's the same formula Kourlis is recommending.
But some commentators doubt that Citizens United will produce dramatic, opinion-shifting examples of corporate excess. Jan Baran, partner at Wiley Rein in Washington, said at the Georgetown conference that 26 states already have no limits on corporate spending in state campaigns -- and their elections are not that different from those that restrict corporate participation. "There have been no stampedes [of special interest money] in those states' elections," Baran wrote in an op-ed column for The New York Times.
Supporters of the high court's decision also caution that using nominating commissions to advise the governor on whom to appoint does not always remove politics from the process. Bradley Smith, a former Federal Election Commission chairman who is now a professor at Capital University Law School in Ohio, said nominating commissions should not be "dominated by elite interest groups on either side of the legal community, such as the trial bar or business groups."
MORE OF THE SAME?
The Conference of Chief Justices is meeting this week in part to consider new standards for recusal of judges, according to Mary McQueen, president of the National Center for State Courts. Because of the Caperton ruling, requiring judges to recuse more often is seen as another way to blunt the influence of judicial campaign money. But in his dissent in Citizens United, Justice John Paul Stevens said recusal will be "small comfort" for states that will no longer be able to place any limits on corporate expenditures for or against candidates.
Harvard Law School professor Laurence Tribe also saw in Citizens United a potential silver lining. The ruling "evidently woke lots of people up to a power play that has been with us for decades," Tribe said after the Georgetown event. "My hope is that this wake-up call will work in favor of strong shareholder protections and disclosure reforms ... and in favor of the slowly gathering movement toward merit selection of judges."
But Stanford Law School professor Pamela Karlan, also speaking at the Georgetown event, said she was "quite pessimistic" about anything good coming out of Citizens United. Even though the public worries about the influence of campaign money on judges, she said, "They want to elect their judges."