While the United States of America was founded on democratic ideals and the notion of rule by the people for the people, one is also often bombarded with the idea of America as the freest country, blessed by any deity of one’s choosing, and perhaps even without fault. However, one who explores the history and structure of our system of government would likely notice that, much like any other system of government, it is not without its flaws. Popular elections tend to appeal to a voter’s emotions and not their sense of reason. While certainly not the only flaw in our democratic republic, this particular one can be the most dangerous with lasting ripple effects. Of all branches of government, the judicial is the one in which these ripple effects could have the most lasting and damaging of all. For this reason, judicial elections are a bane to the health and longevity of our judicial system, and as a result, a bane to the health and longevity of our system of government as a whole.
It did not escape our so-called Founding Fathers that the vitality of our judicial branch relied heavily upon the ideal of judicial independence. Writing Federalist 78, Alexander Hamilton vigorously expressed the importance of judicial independence as a counter-balance to the legislative and the executive branches. He also asserts that the judicial branch is the least dangerous to the rights granted by the Constitution (Hamilton).
However, this was before judicial review as a result of Marbury v. Madison. It now serves as care taker of sorts of the rights afforded by the United States Constitution. For this reason, it is ever more important that it remains as independent as possible.
The state of Mississippi, ever the leader in regressive policies, was the first state in 1832 in which judges were required to be elected as per their state constitution. Of twenty-one state constitutions written between 1846 and 1860, nineteen included provisions which established the popular election of judges. By the start of the Civil War, the total number of states electing judges reached twenty-one out of thirty (Kermit 372).
What brought about this strong trend? One might point the blame towards Jacksonian Democracy. In an effort to reign in control of the government from the elitists and put it back into the hands of the people (assuming you were a white male), Jacksonian Democracy reignited a democratic fervor among its supporters. This populist movement stressed the idea of the “common man” electing judges instead of political elites appointing them. As the Second Party System emerged, this particular issue was one of several at the forefront of many platforms. During this period, voter participation was historically high and the democratic spirit was arguably as strong as it had ever been in the United States of America.
Paradoxically, many of these first generation of elected judges saw themselves as strengthening judicial independence and protecting the rights of the minority from the strength of the majority. Not surprisingly, America’s experimentation with judicial elections has not be adopted by any where else in the world; this is despite the countless list of other attributes of our system of government which have influenced others (Shugerman 1069).
The U.S. judicial system still suffers to this day from the hang over brought about by this wild exercise of democratic excess. This hang over was diagnosed prematurely by Alexis de Tocqueville, in his work titled Democracy in America:
Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at a future period that by thus lessening the independence of the judiciary, they have attacked not only the judicial power, but the democratic republic itself.
While Tocqueville may have sang some praises about various aspects of our system of government, judicial elections did not escape his critique.
While the influence of money in American politics is certainly disturbing, the particular influence of money in judicial elections is outrageous. A judge, as expressed by Hamilton, is to be chosen based on their merit and not on how many hands they shook at country club fund raisers.
Watching a television ad for a judicial candidate makes me feel like I am watching a skit on Saturday Night Live. Judicial campaigns are riddled with absurdity. If a candidate can raise enough money, they can essentially purchase a seat on a bench for life. Federal campaign contribution laws, albeit slowly being dismantled by the Supreme Court as of late, do not apply to many of these state elections. It is not uncommon for judicial campaign contributions to not be limited in amount by law.
What state laws that do exist to protect the independence of judiciaries are subject to attack by opposition. In Republican Party of Minnesota v. White, the Supreme Court ruled that the First Amendment rights of a potential judicial candidate were violated by the state’s announce clause which prohibits potential judges from expressing their views on controversial issues which may come before them. Like attempting to place a piece of duct tape across the first crack in the Titantic‘s hull, this is but a minor effort to thwart the laundry list of negative aspects inherit in judicial elections.
While implications of this decision will only directly impact the nine states with an announce clause, the long-term indirect impact it will have on judicial elections is yet to be seen. One of the more immediate indirect result of this case is the trend across the country of more lawsuits being filed against states with similar rules that were not necessarily covered by the Supreme Court decision. Once again, this was a 5-4 decision with Kennedy joining the conservative majority. A case to prevent partisanship in judicial elections was decided by a partisan Supreme Court. Let that sink in.
What about the influence of campaign donations? In 2006, the New York Times conducted a study of the Ohio Supreme Court and concluded that campaign donations heavily influence judges decisions. Ohio Supreme Court Justice Terrence O’Donnell, facing a tough re-election, received donations from various businesses and political action committees. While this is not itself unusual in this country, it is the fact that after the election he decided two cases which happened to be in favor of two companies that contributed generously to his campaign (NYT).
The catalyst for this study was an Ohio appeals court decision handed down a year before. The court invalidated a $212 million jury verdict against the Telxon Corporation. After investigating, it became known that the judge who wrote the decision, William G. Batchelder, received large sums of contributions from Robert Meyerson, Chief Executive Office of Telxon Corporation.
It was not until 2009 that the United States Supreme Court ruled that an elected judge must recuse themselves from a case involving a campaign contributor in Caperton v. A.T. Massey Coal Company. The court argued that not doing so violated the Due Process clause of the Fourteenth Amendment. Like many recent important Supreme Court cases, this was decided along partisan lines in a 5-4 decision with Kennedy joining the liberal majority. The case even inspired write John Grisham’s work, The Appeal. Grisham joked that all he had to do to get an idea for his next novel was to read The Charleston Gazette, which covered the story extensively.
It is not at all difficult to find other examples of campaign contributions ultimately deciding judicial elections. The Public Affairs Research Council of Louisiana conducted a study of Louisiana district court elections from 1990 to 1994 which showed that “seventy percent of contested elections are won by the candidate who spent the most money” (Cleveland III 393).
Ninety percent of state judges in the United States of America are subject to popular vote, a quality not shared by any other advanced democracy. David Pozen wrote in the Columbia Law Review about the irony of judicial elections as a tool for accountability. This involves voters having a firm idea of what they expect a judge to do and using this to decide if they get another term or not. Unfortunately, there is no one shared ideal of gauging a judge’s performance so this accountability tool quickly becomes self-defeating.
While voter emotions and lack of information is listed alongside campaign contributions as two strong arguments against judicial elections, it is important to note that these two are not mutually exclusive. It is one that preys on the other. In this case, it is campaign contributions that capitalize on voter emotions and the general lack of the application of reason when selecting candidates to vote for.
If a particular judicial election is influenced one way or the other by party battles in Congress or a political scandal, then it is not truly independent. If a particular judicial election is influenced one way or the other by campaign contributions, then it is not truly independent. How much further shall the judicial branch sway from the realm of independence into that of a judiciary in the pockets of millionaires? Hopefully, reform will come soon to this flawed institution that is unique to our country.
For More Information:
Pozen, David E. “The Irony Of Judicial Elections.” Columbia Law Review 108.2 (2008): 265-330. Business Source Complete. Print.
Hamilton, Alexander. “The Judiciary Department.” Independent Journal 14 June 1788. Print.
York., Adam Liptak And Janet Roberts. “TILTING THE SCALES?: The Ohio Experience; Campaign Cash Mirrors a High Court’s Rulings.” New York Times 01 Oct. 2006.The New York Times. The New York Times, 01 Oct. 2006. Web. 10 Oct. 2013.
Cleveland III, William C. “Money And Judicial Elections.” Defense Counsel Journal 68.4 (2001): 393. Business Source Complete. Print.
Shugerman, Jed Handelsman. “Economic Crisis And The Rise Of Judicial Elections And Judicial Review.” Harvard Law Review 123.5 (2010): 1061-1150. Print.
Johnson, Charles A., Roger C. Shaefer, and R. Neal McKnight. “The Salience Of Judicial Candidates And Elections.” Social Science Quarterly (University Of Texas Press) 59.2 (1978): 371-378. Business Source Complete. Print.
Tocqueville, Alexis De, and Arthur Goldhammer. “Chapter IV.” Democracy in America. New York: Library of America, 2004. 365-66. Print.
Hall, Kermit. “The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary 1846-1860.” The Historian 46 (1983): 337-54. Print.