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Judicial Elections Continue Under Fire

By Kent A. Lambert, Litigation News Associate Editor – March 27, 2009

Critics of judicial elections have become increasingly vocal in bemoaning what they see as the corrosive influence of spiraling campaign contributions, special interest spending, and negative campaigning upon the public’s confidence in the integrity and even-handedness of elected judges. These concerns were the focus of a recent panel discussion at the Section of Litigation Winter Leadership Meeting led by retired United States Supreme Court Justice Sandra Day O’Connor.

Citing what she characterized as an inherent conflict between the practical realities of modern electioneering and the judiciary’s essential role of being the safeguard against reactivism and the vagaries of shifting public sentiment, Justice O’Connor opened the proceeding with a call to action, declaring that if she could make just one change to the American judicial system, it would be to eliminate state judicial elections.

Joining Justice O’Connor on the panel were Georgia Supreme Court Justice Carol W. Hunstein; ABA President and former Section Chair H. Thomas Wells Jr., Birmingham, AL; U.S. District Court Judge Barbara Lynn, Dallas, TX, who is also chair of the ABA Judicial Division; and Doreen Dodson, St. Louis, MO, immediate past chair of the ABA Standing Committee on Judicial Independence and current member of the ABA Commission on the World Justice Project. Moderating the discussion was Section Chair Robert L. Rothman, Atlanta, GA.

Many of the panelists expressed concern over the increasing frequency of potentially problematic practices in judicial elections, including spiraling campaign contributions. Such practices not only have the potential to cause deep and long term harm to the public’s perception of the judiciary, but in extreme cases can jeopardize the integrity of the judicial process itself, Wells observed.

At the same time, however, the panelists acknowledged that judicial elections are deeply ingrained in the American political psyche. Many Americans believe elections play an essential role in ensuring hard-won diversity on the bench, and are suspicious of mechanisms that could leave the selection of judges away from public scrutiny.

The public’s suspicion of back-room politics cannot be ignored, notes JoAnne A. Epps, Philadelphia, PA, Section Delegate to the ABA House of Delegates and member of the Special Committee on the Litigation Institute for Trial Training.

“How we instill confidence in the public that such a process will not become mired in closed-door politics is a critical concern for those dedicated to the cause of merit selection,” Epps says.

However, Justice O’Connor pointed out that merit selection actually enjoys a well-established track record of enhancing diversity on the bench. Merit selection has historically played a critical role in the promotion of judicial diversity within many state court systems, Dobson and other panelists noted.

“Viable mechanisms, through which the public can insist upon a proper, transparent, and truly merit-based selection process, must be fleshed out, perhaps beginning with a system premised on an elected selection commission,” Epps adds.

“Many members of the public at large have an almost intuitive faith in the election process as a means of ensuring that candidates are appropriately vetted in an open and public forum,” says Roy Cheatwood, New Orleans, LA, member of the Section’s Federal Practice Task Force.

“Assuring the public that a merit selection process will not mean compromising on either the thoroughness or the transparency of the vetting process for judicial candidates must, therefore, be an essential concern for reformists,” Cheatwood notes.

Drawing on the federal model, Cheatwood adds that “recent experience obviously proves that a judicial selection process can be every bit as rigorous and public as elections—albeit hopefully in a manner that is ultimately more focused on truly relevant topics than attack ads and election polls.”

On the panel, Judge Lynn echoed these considerations, noting that while she believed the advantages of merit selection outweigh any potential negatives, transparency and public vigilance are essential safeguards to the integrity of a selection-based process.

Editors Note
The U.S. Supreme Court will be addressing due process constraints upon judicial campaign contributions in Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 593 (Mem), 77 USLW 3051, 77 USLW 3292, 77 USLW 3295 (November 14, 2008) (NO. 08-22). SeeSupreme Court Weighs Judicial Recusal for Campaign Contributions,” by Henry R. Chalmers, Litigation News (January 23, 2009).

Keywords: Judicial elections, merit selection, judicial independence

Related Resources

  • April 6, 2009 – Merit selection is no more meritorious than ballot selection. In fact, it's probably even more political. This country has enough problems. There's certainly no need to ensure a stacked court.
  • April 7, 2009 – Thanks for this well-written article. I am an elected judge in Oregon (on the Oregon Court of Appeals and formerly a trial judge) and was previously ABA Secretary and also liaison to the commission that recently revised the ABA Model Code of Judicial Conduct. Some states, such as Oregon, have a rigorous merit screening process for appointments to judicial vacancies -- followed by election at the next general election. Most elections are uncontested, though not all. Though much less frequent, some judges are not first appointed, but run for open seats. We also have incumbency designation on the ballot, whether or not the race is contested. I know of at least one attempt to replace our system of elections -- which failed. With all respect to Justice O'Connor, Instead of spending our efforts on eliminating judicial elections (which is unlikely to succeed in many, if not most of the states that have them), I would suggest the following for consideration in states with elected judges: 1) bar sponsored evaluations of incumbent judges that can be publicized before elections; 2) incumbency designation on the ballot; 3) merit selection committees for appointments to vacancies -- local bars for trial judges; state bar for appellate judges; 4) public financing of judicial campaigns; 5) "screens" to keep the candidates from knowing the identities of their contributors (some states do not permit the candidate to know the identity of contributors; others require them to know in order to properly complete their campaign finance-related forms and obligations; 6) non-partisan judicial elections that don't require "slates." I am a longtime member of the Litigation Section, and I would be pleased to participate in future panels that might be planned on this or related topics.
  • April 7, 2009 – There is surely something disingenuous about preferring “merit selection” when it is subsumed in a system of political appointment. If the real objection to popular election of judges is that pandering to an electorate detracts from the dignity and credibility of judicial officers, why not leave judges secure in tenure to choose their fellows? If that suggestion is too radical for most tastes, it may be because, deep down, most of us want a poliitical input in selecting the “right” judges.
  • May 7, 2009 – Whether appointed or elected, there desperately needs to be checks and balances implemented to insure that judges cannot appoint their hand-picked friends as attorneys/guardians ad litem, and an independent and free mechanism for parties to make a complaint against a judge or court appointed attorney if warranted (separate from the courts or state bar, e.g., Office of the Attorney General).


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