August 9, 1999
The Soul of an Elected Judge
By Mark Kozlowski
The idea of electing judges has an unsettling aspect that is almost self-evident. As Justice John Paul Stevens once said to the American Bar Association, the practice “is comparable to allowing football fans to elect the referees.” The practice is even more problematic when, as in a recent case from Louisiana, the fans occupying the luxury boxes exert a highly disproportionate influence over the electoral results.
Even if that influence were perfectly legal, the general run of fans might be justified in doubting that the game was going to be called in accord with the strictest objectivity toward the dictates of the rule book. Moreover, as the Louisiana case shows, the problem becomes particularly acute when the referees decide to amend the rule book in a manner that accords only with the wishes of the luxury-box fans. If they come to believe that the rule book is up for grabs, the general run of fans may just stop believing in the game.
Yet in no fewer than 39 of the 50 states, the process by which the referees in our justice system get their jobs involves popular election. Nearly 82 percent of state appellate judgeships and almost 87 percent of state trial court judgeships are filled, at least in part, by means of elections. The specifics vary greatly—from popular election as the sole means of selection, to schemes involving appointment by one or both of the political branches and reappointment by means of retention elections.
As Stanford legal historian Lawrence Friedman notes, “This idea of electing judges strikes Europeans as very peculiar—as if we elected doctors or policemen or government chemists.” But in the United States, judicial elections have a largely celebrated place as an expression of Jacksonian democracy’s insistence that all government officials should derive their power from the sovereign people. It is much more often the case that the appointment and life tenure of federal judges must be defended. Thomas Jefferson himself put it most plainly: “That there should be public functionaries independent of the nation . . . is a solecism in a republic, of the first order of absurdity and inconsistency.”
Of course, it is by no means universally acknowledged that the operation of the elective principle in general is enjoying robust health. Throughout the quarter-century since Watergate, reams of commentary have decried the corrupting influence of campaign contributions. This wealth of polemic will not abate any time soon, given the fund-raising prowess of George W. Bush and the continuing success of Congress in doing nothing about campaign finance reform while appearing to be very concerned about it.
But amidst all this discussion, it is not often remembered that candidates in judicial elections also receive campaign contributions. Indeed, they need to receive them since judicial elections, which were until recently almost exclusively affairs of slight partisanship, have become increasingly contested affairs in many states.
There has been precious little discussion in the nonlegal press of the impact of campaign finance on the integrity of the judicial process. Fortunately, this may be changing.
Last year, The Nation magazine discussed the ramifications of the fact that “the cost of judicial races is rising at least as fast as that of either Congressional races or presidential campaigns.” The magazine noted “an influx of money from the tobacco industry, casinos, insurance companies, doctors and businesses. Upping the ante are defense lawyers and trial lawyers, along with unions and, recently, the religious right.”
Earlier this year, a front-page article in The Wall Street Journal detailed the Texas Medical Association’s program of “campaign donations and electoral support, “ which has resulted in a state supreme court before which “doctors and hospitals have won 86% of their cases in the past five years—more than any other interest group.” (More recently, the Journal editorialized that the burden of propelling the soi-disant tort reform movement “lies with the judges” because legislatures are unlikely to act given that “trial lawyers’ campaign contributions . . . are now a foundation of the Democratic Party.” Tellingly, the editorial made no mention of the impact of contributions on judicial elections.)
Which brings me to the aforementioned case from Louisiana. On July 27, Judge Eldon Fallon of the U.S. District Court for the Eastern District of Louisiana issued an opinion in Southern Christian Leadership Conference v. Supreme Court of Louisiana that could serve as a primer on the troubling relation between contributions to political campaigns and the independence of the judiciary. The case challenged amendments to the state rules of court, issued by the Louisiana Supreme Court, that significantly cut back the ability of legal clinics staffed by law students to practice in state court.
Among other things, the new rules, which became effective April 15, prohibit student clinics from representing community organizations unless at least 51 percent of the organization’s members have individual incomes below 200 percent of the federal poverty guidelines. Further, the amendments provide that the required certification by a law school dean of a student’s capacity to practice “[m]ay be terminated by this court at any time without notice or hearing and without any showing of cause.”
In the eyes of the plaintiffs, these amendments were anything but a response to a legitimate need of court administration. Rather, they were a means to disable a particular student clinic—the Tulane Environmental Law Clinic.
What has TELC done to deserve this? Ironically, it has done its work too well. Specifically, TELC represented a community organization in its efforts to block construction of a polyvinyl chloride and ethylene dichloride production facility by chemical manufacturer Shintech Corp. After TELC filed objections to the construction plan in April 1997 with the Louisiana Environmental Protection Agency, Shintech decided to locate the plant elsewhere.
According to the plaintiffs, the Louisiana business community then decided that it would not soon lose another war with TELC. Businesses and business groups began an aggressive lobbying campaign to clip TELC’s wings, including letters to the Louisiana Supreme Court in support of the anti-student clinic amendments.
In itself, such activity is not improper, but considered in the context of campaign contributions in recent judicial elections, the impression is irresistible that something other than benign pluralism was at work. According to The Nation, a single business organization, Louisiana for Business and Industry (LABI) and its individual members had donated at least $100, 000 to candidates in the most recent state supreme court elections. One successful candidate in the 1996 race, Chet Traylor, received more than $250, 000 from oil and gas industry executives, their lawyers, and LABI. And LABI’s political director, Virginia Sawyer, has been laudably forthright as to the largess directed at Traylor. Quoted in The Nation regarding recent pro-business rulings of the Louisiana Supreme Court, Sawyer declared, “In my view, any of those cases wouldn’t have happened as they did” had Traylor’s opponent been elected.
In his July 27 decision, Judge Fallon dismissed the plaintiffs’ complaint for failure to state a claim. He held that the amendments to the rules of court, considered of themselves, were not constitutionally infirm. But the judge did not disregard the context in which the amendments were issued. He was refreshingly candid in his discussion of the plaintiffs’ allegation that the amendments were the result of business community pressure, explicitly noting “the close temporal relationship between the business community’s expression of outrage and the subsequent changes” to the rules of court.
Even though Judge Fallon held that the amendments were substantively proper, he wrote that this did not render the allegations of political pressure inconsequential. Rather, he declared that the plaintiffs “may well [have raised] an issue in need of closer examination and debate, but the forum for addressing such questions is more properly a political, not a judicial, one.”
Moreover, in a stunning closing remark that might well be perceived as passing from mere candor into actual cynicism, Judge Fallon declared: “Furthermore, in Louisiana, where state judges are elected, one cannot claim complete surprise when political pressure somehow manifests itself within the judiciary.”
Their Own Integrity
These observations raise compelling questions. First, as a matter of doctrine, a finding that injuries arising from political pressure on judges must be redressed politically is more than a little troubling. The U.S. Supreme Court has declared that the political question doctrine “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Association v. American Cetacean Society (1986). Thus, as the Court stated more recently, the doctrine “is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of government.” United States v. Munoz-Flores (1990).
But the policing of the integrity of the judicial branch itself properly involves the judiciary, especially in instances where it is apparent that a judge may have neglected the quintessential judicial function—the maintenance, in substance and appearance, of the constitutional rectitude of the judicial process. Courts routinely hear claims involving allegations that a judge improperly failed to recuse herself from hearing a particular case, and no one suggests that such claims raise a nonjusticiable political question. Logically speaking, the question of whether amendments to court rules were made in a less-than-disinterested fashion would seem to be no less a matter for judicial scrutiny.
I hasten to add that the plaintiffs did not make—and I don’t make here—any allegation that the members of the Louisiana Supreme Court were bribed outright. There is no evidence recited in the claim that they were, or that any single campaign contribution made by the business community to members of the court violated the law.
But this does not mean that the plaintiffs’ concerns regarding the integrity of the judicial process are baseless. On the contrary, as Justice Felix Frankfurter put it, “The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” D.C. Public Utilities Commission v. Pollak (1952) (Frankfurter, J., in chambers). And the appearance of judicial disinterestedness is not secured by adherence merely to the letter of campaign finance laws.
The Supreme Court has long held that litigants are constitutionally entitled to proceed before “a neutral and detached judge.” Ward v. Village of Monroeville (1972). It is not immediately apparent—indeed, it is not apparent at all—why that principle should be limited to the adjudication of individual cases and not, as the plaintiffs in Louisiana wish, extended to matters of court procedure generally.
I don’t mean to seem naive. It is alas true, as Judge Fallon said, that we should not be surprised when courts react to outside political pressure. But it is a real question to what extent citizens committed to the integrity of the courts should tolerate that pressure.
It is, if anything, a more significant question the extent to which courts themselves should allow their integrity to be subverted. At what point, we may ask, in the face of ever more vocal pressure campaigns and ever increasing campaign contributions, should the judiciary substantially intensify its own self-scrutiny? More specifically, at what point should the judiciary decide that the growing dependence of state judges on campaign contributions is fundamentally at odds with, at the very least, the appearance of the disinterested administration of justice?
ABOUT THE AUTHOR
Mark F. Kozlowski is a Staff Attorney at the Brennan Center for Justice at NYU School of Law.