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Judicial Elections II
by Kent A. Gernander
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popular election of judges in the United States is an anomaly
-- a product of 19th Century populism that has resisted reform
efforts for more than a century.
Judges are elected practically nowhere else in the world. Notable exceptions are the former Soviet Union and a few Swiss cantons. H.A. Linde, an Oregon judge, observed that, "[t]o the rest of the world, the American adherence to judicial elections is as incomprehensible as our rejection of the metric system."
U.S. federal judges have never been elected. They are appointed by the President, confirmed by the Senate, and serve during good behavior. Hamilton, in the Federalist Papers, discussed the importance of permanent tenure to judicial independence, but the notion of electing judges apparently was then thought to be unworthy of consideration. Today, the thought of electing federal judges boggles the mind.
With rare exceptions, judges were not elected in the original 13 states nor in the states admitted to the Union before 1845. Jacksonian populism led to the popular election of judges in states, including Minnesota, admitted to the Union in the mid-19th Century. This was less a reasoned decision than a reaction to political conflict, unpopular decisions, and hostility to lawyers. By the end of that century, most state court judges were elected.
In 1906, Roscoe Pound warned that "putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." Such concerns caused some states, like Minnesota, to make judicial elections nonpartisan. Other states, following the lead of Missouri, adopted systems of merit selection and retention elections. However, despite a century of criticism and reform efforts, today 87 percent of state appellate and trial judges face initial or retention elections.
In Ohio last year, millions of dollars were spent by interest groups on television ads in a contested supreme court election. Business groups accused an incumbent justice of favoring unions and trial lawyers who contributed to her campaign, and (falsely) of changing a vote at the urging of a labor contributor. Television ads showed Justice peeking under her blindfold as money tipped her scales and an announcer intoned the question: "Is justice for sale?"
In Michigan, incumbent justices were called lackeys "bought and paid for" by special interests such as business groups, doctors, and hospital associations. In television ads they were depicted as comic figures dancing in the pocket of a lawyer.
In Texas, judicial campaigns have been financed shamelessly by lawyers and litigants. Contributions by insurance, business and medical interests are credited with changing the composition of the supreme court and the tort law of the state. Similar battles between businesses and those who sue them are waged in Alabama, Illinois, Michigan, Mississippi, and Ohio. Other issues drawing interest groups and their money to judicial elections include crime and punishment, abortion, education financing, gambling, and environmental regulation.
The interest in such issues is increasingly national in scope. Organizations with agendas target state judicial races for their issue ads and money. Their activities and expenditures are largely uncontrolled by candidates or state campaign finance laws.
The cost of judicial election campaigns has escalated dramatically in recent years. Multimillion dollar campaigns for appellate courts have become commonplace. Judicial candidates may find fund-raising distasteful and demeaning to the office they seek, but many oppose contribution restrictions that would reduce the potential for corrupting influence. They realize that many contributors give because they think they are buying influence.
Reform efforts have failed to solve these problems.
In nonpartisan election states, political parties openly endorse and support candidates. In Minnesota, tradition kept political parties out of judicial elections for a century, but that tradition suffered a recent breach.
Retention elections are influenced by money, interest groups and issue ads, just like contested elections. Incumbents were denied retention in recent elections in California, Tennessee, and Nebraska; in each case interest groups focused ad campaigns on controversial rulings. In some ways, the absence of an opposing candidate encourages an issue attack on an incumbent. Sometimes such attacks appear late in the campaign. Many incumbents raise and maintain war chests to respond if organized opposition appears. Retention elections have the added disadvantage of making every race a contest -- a circumstance not lost on judges in contested-election states who are accustomed to running unopposed.
Restrictions on candidate speech and conduct cause the media and the public to dismiss judicial election campaigns as uninteresting. Worse, some perceive the rules as made by incumbent judges to shield themselves from meaningful debate.
Some accept the messiness of judicial elections as the price of accountability. Others try to sanitize the election process in hopes of preserving judicial independence. One sacrifices confidence in the integrity of the judiciary; the other sacrifices confidence in the integrity of the election process.
Minnesota, like many other states, already has a merit selection system for filling trial court vacancies. As a practical matter, almost all trial court judges reach office by appointment, because vacancies are typically created by retirement. And few trial judges are challenged in subsequent elections. Likewise, most appellate judges are initially appointed, although not by a formal merit selection system. Appellate judges have been challenged with greater frequency, but no incumbent has been defeated in recent memory.
Eliminating elections would sacrifice little in accountability. It would gain much in preserving or restoring the independence, integrity, and dignity of the judiciary.
A stubborn tradition stands in the way.
Kent A. Gernander is president of the MSBA. A general practice and trial lawyer in the Winona firm of Streater & Murphy, P.A., he is a graduate of Harvard College and of the University of Minnesota Law School.