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Yes, Virginia, Money Matters in Judicial Races…

A few hot issues predictably capture law students’ imaginations, but right up there is Caperton v. Massey. Teaching this is like telling five year olds there is no Santa Claus.

November 7, 2013

When I teach Constitutional Law at Stetson, a few hot button issues predictably capture law students’ imaginations: abortion, affirmative action, and drug policy. But surprisingly, right up there is a due process case: Caperton v. Massey. Teaching this case to students is like telling five year olds there is no Santa Claus.

In Caperton, coal giant Massey Energy’s then-CEO Don Blankenship spent $3 million to defeat a sitting Justice on the West Virginia Supreme Court. This was more than any other political spender in the race, including the candidates themselves. Massey Energy had a $50 million jury verdict on appeal. Justice Brent Benjamin, who was elected largely by Blankenship’s largess, refused to recuse himself from the case. Justice Benjamin cast the deciding vote in favor of Massey, overturning the $50 million verdict. This prompted review by the U.S. Supreme Court on the due process question of whether, under these extraordinary circumstances, recusal by Justice Benjamin was constitutionally required. The Supreme Court agreed. It ruled that in these extreme conditions, where a litigant before a court spends a disproportionate amount to elect a judge in a pending case, the impartially of the judge was reasonably impugned and recusal was indeed required.

What gets my law student exercised about this case varies. For some it is simply the realization that in 39 states judges are elected — including in Florida for Circuit and County Court judges. None of them want to try their first case before a judge who has received significant campaign funds from the lawyer on the other side. Instead, what they dream of is trying a case before an impartial judge uninfluenced by campaign dollars.

Some are horrified by the surveys of judges where the jurists themselves worry about the impartiality of decisions in the face of increased spending on judicial races.  And the public shares the concern that money matters too much in judicial races. As Chris W. Bonneau from the University of Pittsburg summarized last year, “A 2002 survey of North Carolina voters showed that 78 percent thought money had some or a great deal of influence over judicial decisions. A 2008 survey in Minnesota showed that …78 percent were concerned about judges needing to raise money for campaigns. Finally, a 2008 survey in Wisconsin indicated that 78 percent of the respondents believed that campaign contributions had at least some influence over judicial decisions.”

My students must grapple with the stubborn data in the groundbreaking work of Professor Joanna Shepard showing a troubling correlation between business donors and pro-business decisions among elected state Supreme Court Justices. The idea that justice appears for sale — or least heavily influenced by campaign spending — is something they find iconoclastic.  

Judges don’t like this issue of money in judicial races any more than my law students do. Bob Gammage, a former member of the Texas Supreme Court, described the reliance of judges on campaign donors: “If you don’t dance with them that brung you, you may not be there for the next dance.

When I ask my students how they will navigate this system of elected judges who must raise money for their campaigns, they are split. One part of the class will inevitably argue that the only thing a zealous advocate can do is play the game and pony up campaign dollars for the judges they practice in front of. Others think the ethical advocate should assiduously avoid the appearance that they are trying to influence a sitting judge and state they will request recusals from judges that have received funds from their litigants.

So how could we get the impartial judges that my students and all practicing lawyers deserve? First, we have to stop thinking about the problem piecemeal, as merely an ethical question for individual lawyers reaching for their checkbooks or not—and instead think structurally about whether electing judges with private funds makes for a respectable and functional justice system.

As retired Supreme Court Justice Sandra Day O’Connor reminds us, states do not have to elect their judges at all. This is a policy choice and according to her and others it is a poor one. There are alternative models that states could adopt, including the federal system of judicial appointment with life tenure or the Missouri Plan, which involves a judicial nominating commission that provides a short list of qualified candidates to the governor for selection. Under the Missouri Plan, the appointed judge serves for a set term and then sits for a retention election so that voters can weigh in on his or her job performance.

If changing from elections to an appointive system is too heavy a lift, then reforms within the elective system would be helpful. As the Brennan Center has suggested for years (and most recently here), more than any other elective office, judicial elections would benefit from public financing. This would ensure judges don’t have to feel like Ohio Supreme Court Justice Paul Pfeifer did. As he colorfully put it, “I never felt so much like a hooker down by the bus station … as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote.”

The perpetuation of the status quo of privately funded judicial elections only benefits campaign consultants and broadcast stations that get to book the time for negative campaign ads that trash judges and by extension the judiciary. My students could tell you that what is in jeopardy in structuring how judges get to the bench is precious: it is nothing less than the rule of law itself.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Photo credit: Library of Congress)