Joanna Shepherd (John Disney/Daily Report)
When it comes to judicial decision-making, says Emory law professor Joanna Shepherd, money matters.
Shepherd, who studied the relationship between business’ campaign contributions and voting by state supreme court justices across the country, shared her findings Thursday evening at the Commerce Club at a small gathering of the local chapter of the American Constitution Society, which sponsored the study. She shared the floor with Georgia Supreme Court Justice Carol Hunstein, who lived the subject of Shepherd’s study in 2006 when she survived a reelection challenge funded in large part by business groups.
The study, released last year, examined judges’ votes in thousands of business-related state supreme court opinions from all 50 states for the years 2010 to 2012, considering them alongside records of contributions to the judges’ campaigns. Shepherd looked only at contributions by business groups, explaining that “any interest group can have an influence,” but business contributions represented a larger chunk of money than contributions from attorneys or unions.
On Thursday, Shepherd emphasized her finding that a justice who receives more than half of his or her contributions from business groups side with business interests about two-thirds of the time in deciding cases. Her study acknowledges that could be because business groups are more inclined to give to those who are ideologically disposed to vote in their favor or that judges are consciously or unconsciously influenced by the contributions. Probably both matter, Shepherd said. Her bottom line: “There was this strong relationship between the money and the voting.”
Shepherd’s study expresses alarm with the role of money in judicial elections: It’s called “Justice at Risk,” and the packaging of the results includes quotes from current retired state supreme court justices. They include one from retired Chief Justice Leah Ward Sears of Georgia, who says justices should not have “favored financial backers,” and an Ohioan who says he “never felt so much like a hooker down by the bus station” as he did in a judicial race.
But on Thursday, Shepherd said all methods of judicial selection have their problems. She referenced her 2009 study that said judges who must be reappointed by governors or legislatures to keep their seats are more likely to vote in favor of those other branches of government. And retention elections, in which judges face the electorate in an up-or-down vote to keep their seats, are increasingly drawing more money.
Hunstein recounted her path from successfully running for an open seat on the DeKalb County Superior Court bench in 1984 to weathering the ugly 2006 campaign. She said she had been “haunted” by the prospect that, if she lost that latter race, other judges would be “intimidated” in their rulings.
Hunstein said the worst system of selecting judges is partisan races, in contrast to Georgia where most judicial candidates are not identified as a Republican or Democrat on the ballot. “I like Georgia’s system,” she said. But, she added, “I think the best system is appointment for life.”
Former Representative Buddy Darden, D-Ga., who moderated the discussion, added one caveat: “If you appoint the right person.”