Litigation

USA Today: Justice to the ?Highest Bidder??

By Peter Hardin

What happens when single-issue groups seek reprisal against judges over rulings they dislike?

A USA Today editorial surveys the landscape of judicial election battles fueled by soaring spending, poses that question, and furnishes this answer:

“If single-issue groups get their way, judges everywhere will start looking over their shoulders every time they vote in a controversial case or rule in a way that is unpopular. That will undermine impartial justice.”

The editorial is entitled, “Our view on judicial independence: Judges face reprisals for unpopular rulings.” It touches on one of the hottest developing trends in the 2010 elections, for contentious retention (up-or-down) elections of Supreme Court justices in some states–such as Iowa–that were more accustomed to quiet contests.

Ways to reduce the influence of special interests include turning to merit-based selection of judges, or public financing of judicial campaigns, the editorial notes. But it asserts that “these latest campaigns challenge even those safeguards.” The editorial concludes:

“If judges commit malfeasance or display gross incompetence, they should be subject to removal. But if they are ousted simply because powerful groups disagree with a decision, no one will be able to enter a courtroom without wondering whether justice has been bought by the highest bidder or the special interest with the loudest voice. Everybody loses if the judiciary becomes perceived as just another politically partisan branch of government.”

In a graphic entitled “Buying justice,” the newspaper displays a chart of groups “trying to elect judges who agree with them,” and their expenditures; the chart credits the Justice at Stake Campaign as its source.

In the same newspaper, Brian S. Brown of the National Organization for Marriage, disagrees in a commentary headlined, “Hold judges accountable.” His group advocates ouster of three state Supreme Court justices in Iowa retention elections; they voted with a unanimous court to legalize same-sex marriage in the state.

Ohio University law professor Ric Simmons says in a Columbus Dispatch commentary that a recent report co-authored by the Justice at Stake campaign about the rising costs of judicial elections “has fueled a national debate about the impact of campaign funding on judicial elections and judicial decision-making.”

Simmons downplays the importance of the spending data. He contends that it is more important to focus on reforms influencing the appearance of impropriety, including disclosure and recusal.

The debate over judicial selection reform reaches to the West Coast in a San Francisco Chronicle op-ed by Susan Gluss, media relations director for the U.C. Berkeley School of Law. She finds the JAS report troubling. It documents the way politics and special interests are “infecting judicial races” and threatening fair and impartial courts, she writes, arriving at this conclusion:

“Judges must stand up for unpopular ideas enshrined in our Constitution. Whether it’s protection of unpopular racial, religious and political minorities or criminal defendants, judges shield us from bigotry and discrimination.

“The United States is the only country in the world that elects some of its judges – 39 states in all, including California. If we are to avoid the pitfalls of costly judicial elections, reforms are essential. At stake are hard-earned civil liberties, fair and independent courts, and judges who uphold the rule of law.”

The reform she highlights include merit selection, public financing, stronger disclosure rules, voter information guides, and strict disqualification rules. You can check out the report by JAS and partner groups, “The New Politics of Judicial Elections 2000-2009: Decade of Change” by clicking here.

Full post as published by The Gavel on October 19, 2010 (boomark / email).