Illustration: Gayle Helgand
JUDICIAL SELECTION PROCESS
Stop the partisan politics
July 21, 2008
It's an election year, and the campaign's silly season has begun: big money, independent expenditures by special interests, endless TV advertising, nasty attack ads, false and misleading charges, raging partisan campaigns and debate of hot-button issues.
Unfortunately, all this is happening in the election of state court judges.
In Wisconsin this year, candidates and interest groups spent $5 million to influence the April election of one supreme court justice. The campaign featured 11,000 television ads, mostly negative and funded by special interests. Some ads called the incumbent justice "Loophole Louie" and accused him of having "worked to put criminals on the street."
In West Virginia, supreme court candidates debated abortion rights, an issue mostly played out in the federal courts. Before the May primary election, an interest group spent $170,000 on ads showing the chief justice on vacation in Monte Carlo with a wealthy businessman whose case was pending before the court.
In recent years, candidates have also run bruising, partisan campaigns for supreme court seats in Alabama, Illinois, Michigan and Ohio. In Illinois in 2004, candidates and interests spent $9.3 million in one campaign — a record for a supreme court race.
While partisanship dominates many races for supreme courts, the trial courts have not been immune from party politics. Before the 2006 election, the Dallas County, Texas, bench was solidly Republican. Democrats dominated county elections that year, however, and Democratic candidates won every one of the 28 contested elections for judge, sweeping 20 Republicans from office.
In 10 states, judges are selected in partisan elections — candidates run with party designation. In several other states, political parties and allied interest groups have recently dominated historically nonpartisan judicial elections. In 2008, incumbent justices will be up for election — and subject to challenge — in 15 states.
In 2002, the U.S. Supreme Court ruled that judicial candidates had a First Amendment right to express their views on political and legal issues. Since then, the trend to politicize judicial elections has accelerated. In many elections, business interests have squared off against plaintiffs' lawyers and labor groups in supporting competing candidates. Attack ads often criticize handling of criminal cases, even though the sponsors have other motivations. Conservative groups have distributed questionnaires asking candidates to declare their views on issues such as abortion, school choice and same-sex marriage.
The result has not been pretty. Judges — who are supposed to be trusted, impartial, independent decision-makers — are subject to partisan pressures. Judicial candidates must amass large campaign chests, mostly from lawyers and interests whose cases the winners will decide.
Expensive, partisan elections have also fostered post-election controversies. In Illinois, after the 2004 election, court observers debated whether a justice — whose election was aided by $350,000 in campaign contributions from employees of an insurance company — should participate in deciding a case involving the company.
Public confidence has waned
Not surprisingly, the public's confidence in judges elected in partisan races has waned. Bombarded by ads attacking the integrity of candidates, citizens question whether elected judges will dispense fair and impartial justice. Polls show that many people believe that campaign contributions influence court decisions.
Partisan elections make judges vulnerable to the cycles of national politics, resulting in turnover that detracts from stability of the bench. The demands of partisanship also likely discourage some of the best candidates from seeking appointment or election.
No doubt, some judges abuse their judicial role by deciding questions that should be reserved for political debate and resolution. Such judges should be accountable, but in a process that minimizes partisanship and increases confidence in the courts.
In my home state, Minnesota, we have been largely immune from partisan pressures in judicial selection. We have initial merit selection of trial court judges and nonpartisan elections for all judges. To stem partisan influences, an independent commission has proposed a constitutional amendment requiring that all judges be appointed by merit selection, that the performance of judges be evaluated by an independent commission and that judges run in retention elections. This system provides a good balance between judicial independence and accountability and mitigates the excesses of partisanship.
Other states have adopted, or are considering, measures to moderate partisanship in judicial elections. Reformers in New York have challenged the state's judicial election nomination process, dominated by party bosses. New Mexico, North Carolina and Wisconsin have adopted public financing of judicial campaigns. Other states have considered limits on campaign contributions to judicial candidates, and disclosure of the sources of third-party expenditures.
Partisan politics in judicial elections threaten the integrity of our states' judiciaries. When judges think about how a decision may affect partisans or special interests, what campaign contributions may be gained or lost, or how a ruling may sit with a legislature, justice is impaired. Each state should confront the issue and seek a balance of independence and accountability in its methods for selection and retention of judges.
George W. Soule is the managing partner of Bowman and Brooke in Minneapolis. He served as chairman of the Minnesota Commission on Judicial Selection under Governor Jesse Ventura, and as a member of the Minnesota Commission for the Preservation of an Impartial Judiciary.
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