Electing Judges — Money, Politics or Justice?“It’s a part of what we do to be criticized. I often wonder how easy it was for the judges across the South as they decided very difficult cases in very turbulent times. I think it is — you know I am a big football fan, and one of the things I notice in watching any sporting event is that the referees get out of there fast. They don’t wait around and high-five the fans or anything like that, with good reason. I think it is the reason we have lifetime appointments, is because we are supposed to be criticized, and we are supposed to take the heat sometimes for cases that are controversial, and cases that involve counter-majoritarian considerations.”
— U.S. Supreme Court Justice Clarence Thomas, April 2005. Electing judges is a process fraught with uncertainty and potential problems. The United States is one of only a few democratic countries to choose its judges through elections — probably because requiring judges to run for office is recognized in most countries as uncomfortably mixing the judiciary with partisan politics. Judges who must run for election can be reluctant to make decisions seen as unpopular. And if people think a judge has “sold out” to special interests, or that the whole system is a sell-out, they won’t respect the law. In recent years, state judicial elections have become high-stakes political campaigns. In the 1990s in Texas and Alabama, and especially with the 2000 elections in Alabama, Michigan, Mississippi and Ohio, times and tactics changed with regard to state judicial elections. “Attack advertising, the use of aggressive political consultants and what are often thinly veiled promises to sustain or overturn controversial decisions are now established parts of the campaign for seats on state courts.”
— Common Cause Ohio Millions of dollars were spent on these once-quiet campaigns, which included personal attack ads, clandestine interest-group funding and demands for judicial candidates to “state their fixed position” on certain kinds of cases. In Texas in the 1990s, more than 40 percent of the $9.2 million total contributed to the seven winning candidates for state Supreme Court came from people, their lawyers or other interested parties who had cases pending before that court. Some races were so acrimonious that winners and losers alike said they would never run again. Is that how we want to run our judicial system? “ When judges are labeled as Democrats and Republicans, how can you convince the public that the law is a judge’s only constituency ? And when a winning litigant has contributed thousands of dollars to the judge’s campaign, how do you ever persuade the losing party that only the facts of the case were considered?”
— Thomas Phillips, chief justice of the Texas Supreme Court (1988-2004). Four out of five people believe “elected judges are influenced by having to raise campaign funds” and that “judges’ decisions are influenced by political considerations,” according to a national poll taken in 2000. |
