As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states. Judicial elections -- especially for state Supreme Courts -- have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states. The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution. The Supreme Court has played a huge role in intensifying this problem -- beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001. In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court. Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th. Yes, judicial candidates have free speech rights. But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal. Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial. O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.
But the decision by states to elect their judges was a deliberate, conscious choice. In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes. They sought a judiciary that would be accountable to the public. That same populist streak has kept judicial elections alive (in at least some form) in 38 states.
In the years since White, Justice O’Connor has on several occasions expressed regret about her decision in White and has devoted a good portion of her retirement career to speaking out against judicial elections –most recently in Maryland, where she appeared before the General Assembly in support of the state Attorney General’s call for the abolition of judicial elections. Now after Citizens United, Justice Ginsburg has lent her voice to the cause for abolishing judicial elections as well. But it’s unlikely that Justice O’Connor and Ginsburg will have success in Maryland or in any other state that has been electing its judges for more than 100 years.
There is a real constitutional crisis in the judiciary of some states (and no, Justice Roberts, it’s not the judicial pay scale). More and more, state courts are losing the confidence of the public. The single largest contributor to judicial elections is the Chamber of Commerce and other pro-business groups. Business advocates argue that this is to counter the influence trial judges had in the 1980s, when they were the largest contributors to judicial campaigns. Whatever the history, the reality is that there are strong, well-financed forces favorable to business and to conservative political principles that exert powerful influence over state judicial elections. One would think that the Court would be sensitive this reality after deciding Caperton v. Massey last term. That’s the case in which the Court ruled that it was a violation of due process for a state supreme court judge in West Virginia to hear a case in which the CEO of the coal company defendant had contributed $3 million to ensure the judge’s election. Of course it bears remembering that Caperton was only a 5-4 decision, with the four most conservative justices who comprised most of the majority in Citizens United, in dissent in Caperton.
There are racial consequences to the unfettered role of money and attack ads in judicial elections as well, as black incumbents increasingly face overwhelmingly well-financed opponents, who sometimes draw on racial appeals in their campaigns. African American Supreme Court Justice Louis Butler of Wisconsin was challenged last year by an opponent whose supporters used campaign ads putting Butler’s face next to that of a black child molester, with the accusation that Butler had "found a loophole" to set the molester free. Justice Butler lost his seat.
The only way to bring some measure of sanity to runaway state judicial elections is for states to push for publicly financed elections -- an initiative that’s been tried with some success in North Carolina, and has been adopted in New Mexico, Wisconsin and most recently in West Virginia after Caperton. States should also create judicial campaign conduct committees – made up of respected citizens who comment on the conduct of candidates for judicial office based on a voluntary code that requires civility, a pledge to avoid misrepresentations and scurrilous attacks on opponents. (Disclosure: I helped form and serve on such a Committee in Maryland.)
In the absence of these measures, many state courts -- aided by unwise decisions from the Supreme Court -- will come closer and closer to a crisis of legitimacy.