*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.