Brennan Center for Justice

*Cross-posted from The Huffington Post 

The desultory fight over Samuel Alito's nomination to the Supreme Court
didn't exactly create a "teachable moment" on the central role of
courts in our lives. But there's a sharp and growing debate in the
states over an issue just as profound for democracy: How do we pick
judges? How can we ensure they provide equal justice, rather than
merely mimicking the special interests that put them on the bench?

This issue was thrown into sharp relief in a landmark ruling in New
York recently. Last month, federal Judge John Gleeson overturned the
state's system for picking Supreme Court judges. (That's what New
Yorkers call trial court judges. Here in the Empire State, we think
big!) These jurists are picked in an arcane system that wouldn't appear
out of place in On the Waterfront. Even though there is an
election in November, voters don't really get to choose the candidates.
They're picked by local party leaders. The Brennan Center for Justice
at NYU School of Law represented a brave local judge,
Margarita Lopez Torres. She refused the corrupt Brooklyn Democratic
boss's demands that she hire an underqualified-but-highly-connected law
clerk, and was denied a place on the ballot. In her lawsuit, the
federal judge ruled that the entire state's system needed to be
overhauled, starting with fair primary elections. Meanwhile, the party
boss is headed to jail for corruption.

Real primaries where voters have a real say is a good start, and
certainly is better than boss-run courts. But we can do more. In
particular, campaign reform makes at least as much sense for judicial
races as for their congressional cousins.

A recent incident in Illinois showed the problem. A class action
suit against an auto insurance company worked its way up through the
courts. The appeals court - one level below the state Supreme Court -
ruled for plaintiffs. Soon after, a new Justice was elected to the top
court. Both sides in the case had poured funds into the race. The
candidate who got over $1 million from the defendant's employees and
its allies won. When the state's top court heard the case, the new
Justice refused to recuse himself and cast the deciding vote on a $450
million claim for the insurer. This kind of ethical morass happens all
the time, when judges are forced to raise funds from people or
interests who practice in front of them. It's especially acute in big
statewide races, where justices run in high-stakes, highly-funded
campaigns. The U.S. Supreme Court may hear this case. We weighed in to ask the justices to decide whether the Constitution's requirement for due process means a judge should refrain from hearing a case like this.

Another solution is even broader. A state as Red as North Carolina
recently enacted public financing for judicial races. Short of that,
the Supreme Court can make clear that states can set spending limits
for judgeship candidates. As you Con Law buffs will remember, Buckley
v. Valeo held it was OK to pass laws that limit corruption, but the
mandatory spending limits in federal law weren't needed and thus were
off limits. Vermont recently passed mandatory spending caps, and to no
one's surprise, the Court is deciding whether they are constitutional.
We represent a group of current and former state court judges, who urge
the Supremes to give states the chance to set mandatory caps for judicial elections.

In the end, the U.S. Supreme Court will help decide whether we can
free state courts from the same special interest influence that has led
to so much loss of trust in Congress. In what will be either sweet or
bitter irony, Justices Roberts and Alito will now help decide whether
the thousands of state judges can provide what the motto promises on
the Supreme Court building: Equal Justice Under Law.