I’m continuing my series on money’s impact on our democracy by examining the election of judges, a key area that illuminates the problem unrestricted money creates for our country.
We elect judges?
It may come as a surprise to some to hear that we elect judges. Our mythology about courts is that they are impartial, beyond politics, nonpartisan. From the founding of the country, an independent judiciary has been considered to be essential to democracy.
From the early 1800s, states began to elect judges. There are a variety of theories about what this was intended to achieve, including extending popular sovereignty to the judiciary or resentment of unelected federal judges and their power over the territories. Whatever the reason, it became common for state judges to be elected.
Today, some 39 states elect judges. These elections are done in a variety of ways. Some are contested elections with candidates running against each other. Some states appoint judges to an initial term and then have retention elections where the public simply votes “yes” or “no” on whether the judge should be kept on the bench.
While most judge elections do not attract much attention, and most judges are re-elected, some races become contentious. In 1986, voters ousted Rose Bird, the chief justice of the California Supreme Court, because she absolutely refused to vote to sustain any death penalty sentence. In 2010 Iowa voters fired three state Supreme Court judges who had voted to overturn the ban on same-sex marriages.
Influencing elections
Those two cases are examples of voters disagreeing with judicial decisions. To be sure, various groups invested big money to make voters aware of those decisions and to promote voting out the judges. Nonetheless, these situations could still be seen as a way of keeping judges from straying too far away from the mainstream of voters. However, democracy is more than majority rule: Our rights are supposed to be safe from majority votes. Too much popular influence on judges would not protect our rights.
A second sort of influence of money on elections is now occurring and is unconnected to any wave of popular anger about particular decisions. Three recent examples are worth describing.
Before that, we should introduce a term “recusal.” If a judge thinks they should not judge a case due to a conflict of interest they disqualify themselves: They are said to “recuse” themselves.
Caperton: Spending $3 million to save $50 million
In 1998, Massey Coal Company was sued by Harman Mining Company’s president, Hugh Caperton, over a contract dispute. A local jury in West Virginia awarded Caperton $50 million.
Before the case got to the Supreme Court of West Virginia, Massey’s CEO contributed $3 million through a non-profit to the campaign of Brent Benjamin, who won election to the high court. When the case came to the high court, Benjamin refused to recuse himself and was part of a 3-2 vote overturning the jury award.
This case was appealed to the U.S. Supreme Court which eventually overturned the state decision on the basis that the judge should have recused himself.
There were many twists and turns along the way in this case, enough that it inspired a John Grisham novel, but the core issue is the “appearance of impropriety.” I give money, a lot of money, to a judge, and he votes for me. If I gave the money to him in a paper sack in the dark of the night, that would be a bribe. If I use the money to promote his election, what is that? Not quite a bribe, but enough to justify suspicion.
Judge Annette Ziegler
The judge in the Caperton case could perhaps claim that he had not solicited the campaign contribution and didn’t even want it. Such is not the case for Wisconsin judge Ziegler.
She came to public awareness when she won a place on the State Supreme Court in a contested election characterized by nasty advertisements and accusations more typical to a political election.
She received a $2 million contribution from the Wisconsin Manufacturers and Commerce Association. Justice Ziegler then refused to recuse herself from a key decision affecting that group.
So far, that’s similar to the Caperton case, but there was more. It turned out she had made a string of decisions where she had a financial interest in one of the litigants, including several cases involving a bank where her husband was on the board of directors. In 2010 she was disciplined by her own court – but that did not change the decisions she had voted on.
Nevada
In Nevada, it was discovered that judges running unopposed were nonetheless collecting large contributions, sometimes within days of when the judge took a case involving the contributor.
There are other situations across the country like this.
Is this a problem?
A flood of money is coming into the election of judges, and those judges are often then involved in cases affecting the finances of the organizations who made the contributions.
Note that the claim here is not bribery or proving actual bias. To do that, you would have to know the thought processes of the judges.
To some, that proves there is no problem. In the Caperton decision, the dissenting Supreme Court judges intoned that “All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise.” Judges, then, are claimed to be special people, not subject to the frailties of the rest of us. That’s not very likely.
It is widely agreed that judges must recuse themselves if they would benefit financially from one of the parties to a lawsuit winning. In other words, they can’t profit after they make a decision, but they can profit before they make it.
The appearance of impropriety
That just won’t do. Some analogies make the problem clear.
If you had to wait longer in the emergency room because a patient with less severe condition — but who had contributed money to build the hospital — got attended to first, you’d object. If your child sat on the bench while a less talented child played whose parents had donated money to build the soccer field, you’d object. Doctors take oaths to be impartial and we expect coaches to judge players on the merits. We would not find these situations acceptable at all. It would be no defense for the decision-makers to insist that they were not influenced unduly.
The Supreme Court in Caperton stated it well, quoting an earlier decision, “The question is whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”
Retired Supreme Court Justice Sandra Day O’Connor has been lobbying against judicial elections. She writes, “No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.”
Solving the problem
That’s the problem: Money in judicial elections is undermining the credibility our judicial system must possess. But what is the solution? We’ve got money, we’ve got elections and we’ve also got rules for recusal. That is: We could have elections without massive private contributions, perhaps by public funding or limits on spending. We could eliminate judicial elections or restrict them in some way, perhaps by requiring a 2/3 vote to remove a judge. And we could enforce more strict rules for when judges have to recuse themselves.
Judges themselves have little incentive to solve this issue. It will have to come from the political process motivated by outraged citizens.
An ancient problem
It’s long been known that money influences decisions. In ancient Athens, there was a man who judged many private disputes. Aristides was known as “the just” because before he judged a private dispute he would scrupulously take the same fee from both sides. We need to recover that wisdom today.
Can we restrict the money in elections – and thus restrict the speech that money can buy? That’s the subject of my next essay.