This fall, 33 states will hold elections for their highest courts. Those elections probably will be, in the words of Georgetown University law professor Roy Schotland, "noisier, nastier and costlier" than ever before. The reasons are not hard to understand. Billions of dollars change hands each year in state court judgments and settlements. State judges also rule on vital social issues from school choice to the right to die. It is small wonder that more and more people and interest groups care about who sits on state benches.
Traditionally, most judicial campaigns were quiet, low-budget affairs. Incumbents, even on the
states' highest courts, generally were
unopposed. Electioneering in contested races was limited to a few yard signs and perfunctory remarks to civic or professional groups. When million-dollar races came to the Texas Supreme Court about 20 years ago, fueled by a battle between plaintiffs' trial lawyers and some business and professional groups, outsiders were shocked. The New York Times in 1987 opined that Texas justice was "reminiscent of what passes for justice in small countries run by colonels in mirrored sunglasses."
Today, Texas is a mere also-ran in the contest for the most expensive and outrageous judicial election. Such battles are now common in the 39 states that elect some of their judges. The Brennan Center for Justice at New York University Law School reported that state supreme court candidates raised 61 percent more campaign funds in 2000 than they did just two years earlier. Meanwhile, campaign rhetoric is hitting new lows. In 2000, for example, an independent group paid for an Ohio television ad that showed Lady Justice peeking from under her blindfold at cash piled onto her scales. Noting that an incumbent Democratic justice had taken campaign contributions from personal injury lawyers, the ad asked, "Is justice for sale?" An independent group's ad in Michigan depicted an insurance executive who, having learned of losing a lawsuit, demanded to see "my judges," whereupon miniaturized images of actors resembling the three Republican incumbents were shown dancing in his pocket.
People in states with elected rather than appointed judges show somewhat less confidence in the fairness of their courts.
Such costly and strident campaigns damage our legal system by confusing the public about what a judge does. Judges are different from other elected officials. Judges apply the law to the facts of each case, regardless of personal preferences. Every judge I know has made decisions he or she felt were bad policy, or even unjust. But our democratic process depends on judges who apply the law as made by the people's elected representatives -- judges who interpret the law, not invent it. Only if the public believes that judges are servants of the law, not legislators disguised in robes, will the courts be respected.
On the other hand, a candidate's "judicial philosophy" is an important indicator of how he or she approaches a case, and therefore fair game for debate. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, both highly regarded former professors promoted from the same court of appeals, often reach very different conclusions when interpreting the same constitutional right or statutory provision.
Rising campaign costs have made money a preoccupation for most candidates. A successful statewide judicial candidate may employ a consultant, campaign manager, media specialist, fund-raiser, scheduler, travel aide and volunteer coordinator. Four candidates for an open seat on the Alabama Supreme Court in 2000 raised an average of more than $1.2 million each. While these sums might not be enough to inform the voters, they take the better part of a campaign year to amass.
If we do not reform the election process, we risk a collapse in respect for the courts and the rule of law.
Frequently, the donations themselves become campaign issues, as in Ohio, because the money mostly comes from lawyers, businesses and professionals with financial interests in rulings. Allegations that judges have sold out to their contributors often drown out scholarly evidence to the contrary, not to mention more germane but less exciting issues such as background and experience.
Another disturbing trend is the growing activity by "outside agitators" in judicial campaigns. Anthony Champagne, a political science professor at the University of Texas at Dallas, calculated that, in 2000, 46 percent of all TV ads for supreme court candidates in four of the hottest races -- Michigan, Ohio, Alabama and Mississippi -- were purchased by special-interest groups. In the controversial Ohio race, independent groups outspent both candidates combined. Such groups do not even have to disclose their contributors, much less justify the truth or fairness of their charges. The Lady Justice ad in Ohio and the Michigan coat pocket ad were both sponsored by independent groups, not by candidates. During my first race for Texas chief justice in 1988, an independent group took a fragment of one sentence from one opinion and superimposed it on a burning Constitution in an ad that claimed that I would strip citizens of their fundamental right to jury trials.
Finally, interest groups also ignore the restraint a judge should demonstrate. Instead they push to know how a judge would decide particular cases. Judicial candidates have long declined to answer such questions because state judicial conduct codes forbid comment on issues that might later come before them. Now the U.S. Supreme Court is considering whether such codes violate the First Amendment free speech rights of candidates and voters. If there were no code restriction, where would the line be?
Before my last election, the Greater Texas Sportsmen's Coalition asked how many firearms I owned, how many times I had gone hunting or target shooting in the previous 12 months, whether I ever applied for a permit to carry a concealed handgun and other questions that might give them clues as to how I might rule on their issues. I answered these. But this year, a different group, the Gun Owners of America, wants a commitment that I would oppose "legislation that bans firearms ownership due to simple misdemeanors."
These trends are undermining public confidence in the judicial process. Recent polls show that between two-thirds and three-quarters of the voters in states with elected judges believe that campaign contributions influence judicial decisions. People in states with elected rather than appointed judges show somewhat less confidence in the fairness of their courts. This is ironic, since the idea of electing judges, which swept America in the years before the Civil War, came into vogue as a way to curtail political patronage while making judges more accountable.
In an ideal world, the governor would appoint judges by "merit selection" from a list of names screened by a diverse nominating panel.
Yet the same polls show that voters like to elect judges. Their main complaint about those elections is the lack of adequate information about the candidates.
If we do not reform the election process, we risk a collapse in respect for the courts and the rule of law. We must better inform the voters, while reducing the need for judges to tarnish themselves by raising campaign funds. We need to balance judges' and campaign contributors' right to free speech against the public's right to fair and open-minded courts. We can hope that the U.S. Supreme Court will recognize that the need for neutral judges is more important than permitting judges to state their views on any and every issue.
In an ideal world, I would abolish contested elections and let governors appoint judges by "merit selection" from a list of names screened by a diverse nominating panel. Those judges would then run periodically to keep their offices in "yes or no" retention elections. Missouri first adopted this system in 1940, and many other states have done so since. It usually produces good judges, and voters can act when it does not.
Even in the absence of the perfect solution, we can pursue perfectly reasonable ones. At the very least, candidates should not run with a party label. Voter's guides with information about candidates can be posted on the Internet and sent by mail. Impartial and unofficial citizens' panels should resolve disputes between candidates and denounce unfair attacks. All campaign contributions should be reported fully. Reasonable limits, already in place in many states, should be imposed on the size, source and timing of contributions. Judges should recuse themselves from cases involving exceptionally large contributors.
I am not ashamed to be accountable to the voters for my record as the presiding officer of Texas' highest court. But when I rule on a case, I don't want anyone wondering whether my vote was cast in gratitude for past contributions or in anticipation of future support. Voters deserve a system that both in fact and in appearance is as free of influence as possible. Let's give them one.