Justice for Rent
Wohl, Alexander, The American Prospect
THE SCANDAL OF JUDICIAL CAMPAIGN FINANCING
During a recent campaign for a seat on a local Ohio Domestic Relations Court, a Lawyer from a small firm ran up against a political, ethical, and financial dilemma. His predicament began innocently enough when he was solicited for a campaign contribution by supporters of the Democratic incumbent. The lawyer, a longtime Democrat, willingly put his signature on a $250 check to the judge's campaign. Soon, however, he was contacted by the campaign of the Republican opponent. Would the lawyer be willing to contribute to their candidate's campaign as well? The lawyer, who almost never gave to Republican candidates, nonetheless wrote out a matching check. His rationale was simple: His legal practice involved frequent appearances in family court, and he simply could not afford to risk offending whichever judge was eventually elected.
The Ohio lawyer's story highlights an increasingly common and troublesome phenomenon: the dramatic rise in costly, privately financed judicial campaigns wherein the preponderance of money comes from lawyers and others with a direct stake in the judge's decisions. This trend not only poses a danger to the independence of judges across the nation; it also encourages the politicization and potential corruption of the branch of government that should remain most immune from such influences. The real irony, though, is that this problem is going unattended just as our national campaign system, including constitutional limits on political contributions, is receiving increasing scrutiny.
Judicial campaigns date back to the first years of our national history but now involve far greater sums of money than ever before. Consider, for example, last year's campaign for chief justice of the Wisconsin Supreme Court. Spending totaled $1.3 million, nearly double the previous spending record set just two years prior and more than 10 times the spending of a campaign 20 years earlier. Or take the 1996 race for the Alabama Supreme Court, in which the two candidates together spent more than $2 million, about 10 times as much as was spent for a seat 10 years earlier. In Texas the seriousness and duration of the problem--even after the institution of reforms in 1995--have led to the recent filing of a lawsuit by Public Citizen challenging the constitutionality of the system. The lawsuit, which has the potential to affect campaign finance systems in other states, argues that a system that allows and encourages candidates for state court judgeships to solicit campaign funds from individuals and lawyers who appear before them violates the Due Process clause of the U.S. Constitution.
Much of this trend toward increasing expenditures in judicial campaigns dates back to a 1978 Calitornia judicial election in which Los Angeles deputy district attorneys recruited candidates to oppose unchallenged incumbent trial judges. The effort resulted in a significant turnover of judicial personnel, but more importantly, it marked the beginning of a movement that eventually led to one of the most prominent, controversial, and expensive judicial races ever: the 1986 recall election in which Californians voted out State Supreme Court Chief Justice Rose Bird and two associate justices. More than $11 million was spent by both sides on a campaign that centered on a single issue--Bird's refusal to enforce the death penalty in California.
By contrast, the federal judiciary is structured to avoid precisely this sort of politicization of the bench. Under the U.S. Constitution, members of the federal bench are appointed by the president and confirmed by the Senate, and they receive lifetime tenure--a prize intended to ensure judicial independence and fealty to the supreme law of the land over any partisan attachment. The federal system is certainly not without its underlying political influences: Presidents appoint judges with a view to their judicial and political philosophy. …