President's Page: Money and Judicial Elections
Cleveland, William C., III, Defense Counsel Journal
We must never forget that the only real source of power that we as judges can tap is the respect of the people. - Justice Thurgood Marshall
IN THE last 20 years, there has been growing apprehension in the United States about the manner in which the election of state court judges is conducted and financed. Thirty-nine states provide for popular election of judges, with the result that more than 80 percent of all state appellate and trial judges are selected through direct or retention elections. Historically, judicial elections received little media or public attention. But in the last two decades, the growing strength of special interest groups, the emergence of issue advocacy, and the increase in the unpredictability and size of jury verdicts, with the attendant transfer of enormous wealth to the personal injury plaintiffs' bar, have focused more attention on election of judges and how those elections are financed.
Studies have shown that there is growing public distrust in the independence of the judiciary and a growing belief that justice is for sale.
The public resources counsel of Louisiana examined all judicial elections at the district court level and above from 1990-94 and found that 70 percent of contested elections are won by the candidate who spent the most money. In three of the four closely scrutinized campaigns, lawyers provided approximately two thirds of the contributions. Plaintiffs' lawyers provided about 40 percent of the total contribution to all candidates from all sources in the four highly scrutinized elections. Identifiable contributions from non-lawyer political action committees, business and the medical profession ranged from about 14 to 30 percent of funding for all candidates.
A citizens' committee on judicial elections established by Ohio Chief Justice Moyer found that nine of 10 Ohioans believe that judicial decisions are affected by political contributions and that the public questions the impartiality of judges who sit on cases involving campaign contributors.
Appointed by the Pennsylvania Supreme Court, the Special Commission to Limit Campaign Expenditures found that 59 percent of Pennsylvania voters felt that too much money was spent on judicial campaigns. Eighty-eight percent thought judges' decisions were influenced at least some of the time by campaign contributions; 37 percent thought it was most or all of the time.
A California commission interviewed dozen of judges, campaign consultants and academic experts in reaching its findings that controversial races create pressure to raise money, that candidates are forced to solicit campaign contributions from lawyers and litigants, and that candidates are often left in debt after the expense of elections.
Chief justices' "call to action"
Last January, the chief justices of 17 of the most populous states released a "call to action" to reverse a trend toward high-cost, partisan judicial elections. Their key recommendations include conducting all judicial elections in a nonpartisan manner; establishing monitoring groups to encourage fair and ethical judicial campaigns; lengthening judicial terms in states where they are short; encouraging bar associations to conduct regular evaluations of judges and make them available to the public; and adopting public funding "for at least some" judicial elections. …