Judicial elections nationwide in 2010 have highlighted the growing influence of money and special interests while heightening concerns for preservation of a fair and impartial judiciary that enjoys public confidence.
The 2010 election cycle highlights concerns about the conduct of judicial elections, including the influence of money and special interests. We need to take those developments into account as we renew our commitment to achieving significant reforms in the selection of judges.
The American Judicature Society has spent nearly a century leading the movement toward merit selection of judges, retention elections, and performance evaluation. On November 2, the voters of Nevada rejected a statewide move to such a system, despite broad bipartisan support from the labor, business, and legal communities and a series of unflattering exposes about the judicial system. It has now been more than 25 years since a state has amended its constitution to replace contested judicial elections with a merit selection system. While AJS remains committed to promoting the adoption of new merit selection systems in the states, the difficulty of achieving state constitutional change must be recognized and factored into the short-term goals of judicial reformers.
The November results also provide an opportunity to evaluate the current state of retention elections. In Iowa, three supreme court justices were targeted for their unanimous decision overturning the state’s marriage statute and opening the door to same-sex marriage. After a vigorous anti-retention campaign costing nearly $1 million, most of which came from out-of-state groups, the justices were defeated. In Alaska, a late-breaking campaign during the final two weeks against Justice Dana Fabe failed, and she was retained. In Illinois, where judges are initially selected in partisan elections and then run in retention elections, Chief Justice Thomas Kilbride faced organized opposition because of a ruling that overturned limits on medical malpractice awards. Kilbride raised nearly $3 million and won retention.
Not all states with retention elections became the battleground some had feared. In Kansas, an expected “Fire Beier” campaign led by anti-abortion groups to target a member of the Kansas Supreme Court never really materialized. An antitax group in Colorado started a “Clear the Bench” campaign in an effort to defeat all three justices up for retention. That campaign was as unsuccessful as the previous attempt to impose term limits for Colorado judges in 2008.
Context matters and each of these results reflects a blend of state political cultures, on-the-ground decision making, and national trends. Despite the disparate situations and the varying success of these campaigns, however, the 2010 elections do provide some lessons regarding the current environment for supporters of fair and impartial courts.
For the past decade, numerous groups have documented the rise of campaign money in judicial elections. The Justice At Stake Campaign (www.justiceatstake.org) has reported that from 2000-2009, $207 million has been raised and spent by supreme court candidates nationwide. Of this total, just $2.2 million made its way into retention elections. Although these figures do not include “independent expenditures” (which continue to increase) they illustrate the profound difference between contested elections and retention elections. However, in Iowa and Alaska, the money spent by antiretention forces on direct mail, sophisticated websites, and negative TV advertising created an electoral contest closely mirroring the nasty and contentious judicial campaigns in other states.
In Iowa, the justices themselves did not organize campaigns or raise money. The supporters of the Iowa justices, including a popular former governor, raised $400,000 on their behalf. In Illinois, Chief Justice Kilbride mounted an expensive and vigorous campaign to keep his seat. There are states with retention elections that allow judges latitude in responding to potential attacks by setting up campaigns and raising money before active opposition surfaces. Without the ability and willingness to do so, judges up for retention can be vulnerable to last-minute attacks. The states that are more restrictive ought to at least discuss the dangers these restrictions can create. Alaska illustrates that there can be a planned election ambush.
Television advertising in the 2010 retention elections often presented a one-sided and negative picture of the courts. In Illinois, a group called JUST PAC ran a brutal TV ad that selectively chose cases intended to portray Justice Kilbride as procriminal. In Iowa, television ads implied that rulings against gun rights and property rights were imminent should the justices retain their positions. Across both contested and retention elections, one common denominator is that judicial election ads can be misleading and inaccurate. Unfortunately, they demean the office and are too often effective in determining the outcome of the election.
In contrast, a new “Know Your Judge” website in Colorado (www.knowyourjudge.com) provided voter information that appears to have been effective in countering the attempt to remove supreme court justices. This demonstrates voters’ interest in thoughtful and meaningful informational tools to evaluate judges. The desire for information lends credence to a push for formal judicial performance evaluation programs, a proposal that has the potential to gain support across a broad political spectrum.
The role of judges is to uphold the legal rights of all, even when majority opinion runs contrary. Judges are asked to decide a host of difficult questions, and the possibility of electoral backlash should not deter their faithful application of the law. Our nation needs a refresher course on the concepts of separation of powers, checks and balances, and the role of the courts. Judges need to see public education about the role that courts play to be a critical and everyday responsibility, not simply an election-year activity. Outreach cannot be limited to speaking only to the converted. Court leaders need to be willing to talk to the judiciary’s most fervent critics. In states where canons of ethics restrict outreach, we need to be open to reevaluating those rules. The stakes are too important to allow temporary demoralization to hinder efforts to educate the public about the fundamental role of courts in a democracy.
The best vaccine for infectious judicial political campaigns is good performance. The political independence of the judiciary is a means to achieve good judicial performance, not an end unto itself. Courts as institutions need to adopt performance measures that are relevant and understandable by the public, including those related to fairness, access, and respect for litigants and the legal process—and judges should affirm their willingness to be held accountable to those performance measures. Good judicial appointments help ensure good performance, but judges need regular systematic feedback. Public evaluation of judicial performance is more difficult to implement in states with contested elections, but finding a way to provide evaluation or feedback is necessary. Although it may prove expensive, we cannot afford not to make this a priority.
The elections of 2012 will soon be upon us. AJS will continue to support long-term efforts to create new merit selection systems by constitutional amendment, but much work can and should be done over the next two years to enhance the effectiveness and transparency of existing systems. Some critics of the judiciary will be emboldened by the 2010 results, but they should not, and need not, dictate the agenda in the coming years. Supporters of fair and impartial courts must not be deterred. Whether pursuing improvements to existing systems or constitutional change in judicial selection methods, now is the time to reaffirm our commitment to the fair and impartial judiciary that is so vital to democracy.
This commentary is reprinted by permission from Judicature, the journal of the American Judicature Society. It first appeared in the journal’s November-December 2010 issue.