Brennan Center for Justice

 

In the second and third parts of a three-part series, Andrew Cohen is “looking at the political and social forces undercutting the authority and integrity of the nation’s state courts.” (The first article was featured in last week’s e-lert.)  The second article in the series is on money and partisanship in judicial races. The article concludes, “Of all the dubious effects of Citizens United, [the impact on judicial elections] may be the worst. Politicians come and go. So do campaigns and causes, policies and priorities. But once the integrity of the judiciary is stripped away, once the independence of judges is undermined by the most powerful, once the appearance of impropriety becomes the exception and not the rule, there may be no going back. And then where will Americans go, the vast majority of us who cannot afford to lobby the courts in this fashion, those of us who want to redress our grievances against the mighty, when we seek justice under our rule of law?” The third article in the series focuses on “[the] predictable consequences [of judicial campaigning] for judicial integrity, independence, and equal justice under a rule of law.” Cohen argues, “Judicial elections, races where sitting judges or judicial candidates beg for votes from past, present, and future litigants, are now sadly the norm in America. They occur, to varying degrees, in 39 states, undermining justice, prejudicing litigants, and generating genuine alarm among old-school conservatives. ‘When you enter one of those courtrooms,’ retired United States Supreme Court Justice Sandra Day O’Connor, the first Reagan appointee, wrote in an op-ed piece in 2010, ‘the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.’”  Cohen focuses on Texas’s system, which he describes as having “some of the most permissive judicial election laws in the nation and where, predictably, special interest money has poured into judicial races.”

 

Last week, Bill Moyers featured a segment on his show called “Justice, not Politics,” and has two pieces on his blog also related to the topic. The first, an article by Bill Moyers and Michael Winship, discusses Florida’s and Iowa’s retention elections and Pennsylvania’s judicial elections, and how these electoral fights are symbolic of “a movement afoot to punish judges for decisions that offend political partisans.” The article states: “Once again, serious campaign finance reform with full transparency and public funding would go a long way toward solving the problem. Otherwise, as that study from the Center for American Progress reports, ‘In courtrooms across the country, big corporations and other special interests are tilting the playing field in their favor.’ And as the Iowans of Justice Not Politics declare, ‘If politics and campaign money are allowed into the courts, justice will be for sale.’” The other piece on Moyer’s blog, by John Light, also focuses on state judicial elections. The article concludes, “in the wake of Citizens United, what Justice Kennedy describes as the state court’s ‘probity’ (honesty and decency) and ‘judicial integrity’ could be up for grabs to whoever raises the most money.”

 

 

The main issue coming out of the Ohio Supreme Court race, according to an article distributed by the Associated Press, is the propriety of campaign contributions made to two of the candidates. Democrat William O’Neill is accusing Republicans Justice Robert Cupp, his opponent, and Justice Terrance O’Donnell, a candidate in a different race, of receiving “a combined $44,000 in contributions tied to Akron-based FirstEnergy Corp. this year … during a time the utility had cases pending at the court.” According to the article the two candidates deny any wrong-doing: “O’Donnell said O’Neill failed to mention that a three-judge panel rejected a grievance O’Neill filed over the issue. Cupp defended the need for contributions, while noting that justices themselves are banned from directly seeking campaign contributions. Instead, a separate campaign committee solicits donations.” According to an article in the Cincinnati Inquirer, “Both Cupp and O’Donnell acknowledged their campaign committees took $6,300 each from the [First Energy] PAC, but they said they did nothing wrong. Cupp said he doesn’t know who donates to his campaign committee, and both judges said the money played no role in their decision to join with a majority ruling favorable to the company.”

 

As has been covered in previous elerts, there is a referendum in Missouri to change the selection method for the panel that proposes judicial candidates to the governor. According to the Associated Press, “If approved by voters, the proposed constitutional amendment would give governors greater sway in shaping the special commissions that screen judicial applicants and also give the state’s chief executive a wider variety of finalists from which to make judicial appointments.” But according to the article, “neither the Democratic governor nor his Republican opponent are backing the measure, preferring to instead keep the status quo for appointing judges.” The article explains, “The proposal was referred to the ballot by the Republican-led Legislature, which has complained that lawyers[,] in particular[] those who handle injury and liability lawsuits[,] have too much influence on the current judicial nominating panels. But [Republican candidate Dave] Spence said the proposed constitutional amendment also has its faults. ‘I think it puts too much power with the governor.” The current governor, Jay Nixon, also opposes the ballot measure according to his campaign spokesperson, who is quoted in the article as saying, “Gov. Nixon feels the Missouri Plan has allowed him to name qualified judges to the appellate bench, and the plan has his support” (the Missouri Plan refers to the current process, and not the new proposal).

 

An editorial released by the North East Mississippi Daily Journal says “there is something unseemly about the process that requires [judicial candidates] to raise money from donors to achieve their goal of serving or staying on the state’s highest court.” The editorial goes on to say, “Asking for votes itself is debatable. We’ve long advocated consideration in Mississippi of an appointive system for the state Supreme Court with some safeguard such as a periodic up or down vote to determine whether a justice stays in office. A majority of states have some form of appointed judiciary.” The editorial concludes, “Ethical judges will avoid deciding cases based on the perspective of their financial supporters. But why make it necessary for them to seek, or for others to seek that support on their behalf? It’s simply not in the best interest of an independent judiciary with the public’s full confidence.” This opinion comes after judicial candidates had to release their financial reports, which, according to the Memphis Commercial Appeal, show a strong advantage to incumbents. According to the article, “Incumbents have raised far more campaign cash than challengers, adding to their built-in advantage of name recognition. Judicial candidates are extremely limited in what they’re allowed to say, so it’s tough for a challenger to pick apart an incumbent’s record and promise to do things differently.”