Justice for SalePrint
How big money is overwhelming judicial elections and corroding our confidence in the courts
By Lincoln Caplan
June 1, 2012
The hearing room of the Wisconsin Supreme Court could be a Beaux-Arts museum, exhibiting images of justice as idealized in America for centuries: ornate, dignified, above reproach. Light pours in through a huge leaded-glass skylight, radiating off veined white marble. Large murals set high off the floor dominate each wall, depicting the venerable sources of Wisconsin law—Roman, English, Native American, and federal. The one to the left of the room’s mahogany bench portrays King John of England reluctantly granting the Great Charter, or Magna Carta, which, in June 1215, ended his lawless seizure of nobles’ land and began an era of legal rights embodied in English, then American, common law.
Article 40 of the Magna Carta pledged, “To no one will we sell, to no one will we refuse or delay right or justice.” But recently, in a string of expensive and increasingly contested elections, candidates to be justices of the Wisconsin Supreme Court have flouted the not-for-sale principle, demeaning the courtroom’s grandeur.
Wisconsin is not alone. In state after state, campaign contributions and related spending by special interests have risen dramatically in the past decade and are expected to swell in the wake of the U.S. Supreme Court’s 2010 Citizens United decision, which removed any limits on independent spending. Wisconsin is one of 22 states that elect judges to their highest courts, or one of 38 if you count states that have so-called retention elections by which appointed judges run to retain their seats. In all of them, independent spending threatens to overwhelm the system of electing judges, making them and the candidates running against them dependent on private money and eroding the public’s confidence in the courts.
Because judicial elections occur on different cycles and are subject to the push and pull of different forces in different jurisdictions, Citizens United has not increased spending uniformly in each state. But across the country, the ruling has caused spending to continue to rise at an ever-accelerating rate. This year, races in Florida, Michigan, and West Virginia have already set new highs for independent spending. Nowhere, though, are the pernicious effects more evident than in Wisconsin, which stands as a warning of just how bad things can get.
In 2007, in a Wisconsin Supreme Court race in which the two candidates spent a total of $2.7 million and special interests spent $3.1 million, Annette Kingsland Ziegler was elected and kept for conservatives a seat being vacated by another judge. The following year, the two candidates together spent “only” $1.2 million, joined by $3.4 million from special interests, much of it on distorted attack ads, which helped Michael Gableman defeat Louis Butler, the court’s first African-American justice, and swung the seven-member bench from liberal to conservative. And things have only gotten worse—over the past five years, special interests in Wisconsin have spent $14.8 million on TV ads to influence judicial elections, more than in any state except Pennsylvania, which has more than twice Wisconsin’s population.
After his defeat, Butler appeared at a conference on judicial selection reform. Holding up a copy of John Grisham’s 2008 novel, The Appeal, he said, “Welcome to my world.” In the novel, a chemical company’s industrial waste poisons the water in a Mississippi town, causing widespread cancer and death. The company stage-manages and heavily funds a successful campaign to replace a liberal justice with a conservative one, who shifts the state supreme court from left to right and casts the deciding vote to overturn a $41 million verdict against the company. The ads that defeated the liberal incumbent attacked her record on crime and other social issues, but really it was her lack of favoritism to business that led the company to take her down.
Like Grisham’s successful challenger, Michael Gableman was a little-known county trial judge with thin credentials, recruited by business to run against Butler. He became the first candidate to defeat a sitting justice since 1967; only three other justices in state history had been defeated in the previous 115 years—in 1947, 1908, and 1855.
Gableman’s TV ads accused Butler of having worked “to put criminals on the street,” pointing to the rapist of an 11-year-old girl. The ad was so misleading that the Wisconsin Judicial Commission charged Gableman with misconduct for “reckless disregard for the truth.” As a judge or justice, Butler never heard a case involving the rapist. But as a public defender years before, he had unsuccessfully sought a new trial for the man because of a breach of criminal procedure in a rape case. The rapist served out his time, and after his release, when he was no longer Butler’s client, he sexually assaulted another girl. Nevertheless, a review board rejected the misconduct charge against Gableman, finding that each individual assertion in the ad was true, so their sum could not be false.
Butler was not targeted for his views on crime, however. Gableman shifted the Wisconsin court to the right and cast the pivotal vote in 2011 when, by 4-3, the court overturned a trial court’s stay of a Republican-backed state law curbing the collective bargaining rights of public employees, effectively upholding the law—the legal fight that made Wisconsin a battleground between the rabid new right and the outraged old left in American politics.
In a detail outdoing the Grisham novel, Gableman turned out to have received two years’ worth of free legal counsel in a second appeal of the judicial commission’s misconduct charge heard by his fellow justices on the Wisconsin Supreme Court. While sitting on the bench, he received the unpaid counsel from a law firm that regularly appeared before him and the rest of the court. In 10 cases in which the firm appeared before the court during that period, Gableman recused himself just once. He voted against the firm four times when the votes weren’t close, but sided with it in the five remaining cases—two where the vote was 4-3, including the anti-union ruling.
Gableman defended himself by saying the counsel he received was not a gift, and therefore not unethical, because he had agreed to reimburse the firm if he won the case and the state paid his bill—a standard contingency fee arrangement, his lawyer called it, although it is standard only in cases to recover for civil damages, not to defend against charges of misconduct.
The arrangement distilled to its corrosive essence a core problem of judicial elections: Gableman received free counsel from a law firm that asked for his vote, an explicit conflict of interest; and worse, he gave his vote five times. The give-and-get had the appearance of a quid pro quo, despite his claim to the contrary—and only after a state prosecutor discovered and revealed what had been an undisclosed deal. In the matter of his misconduct charge, the court split 3-3 along right-left lines and dropped the case because of the impasse.
But the conflict did not go away. Under well-established ethics principles, the independence and impartiality required of a judge are undermined by dependence on lawyers’ donations, just as they were in the anti-union and other cases by Gableman’s acceptance of free legal counsel. If a judge’s impartiality can reasonably be questioned, even if only as a result of the appearance of partiality, the judge must disqualify himself.
In 2009, however, the Wisconsin Supreme Court took care of that problem by abandoning the principle altogether. In another 4-3 vote along ideological lines, the court watered down the basis for recusal—adopting “word for word,” as one disapproving justice observed, the proposal of two major business groups that had heavily contributed to Wisconsin judicial campaigns and stood to benefit from the change: with it, they can contribute to judicial campaigns without risk of causing a recipient to recuse. The court ruled that campaign contributions to a justice, or independent expenditures on a justice’s behalf in previous elections by lobbyists, like these two business groups, do not require a justice’s disqualification.
The majority opinion said of the revision,
The purpose of this rule is to make clear that the receipt of a lawful campaign contribution by a judicial candidate’s campaign committee does not, by itself, require the candidate to recuse himself or herself as a judge from a proceeding involving a contributor. An endorsement of the judge by a lawyer, other individual, or entity also does not, by itself, require a judge’s recusal from a proceeding involving the endorser. Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal.
Campaign contributions must be publicly reported. Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution, the logic goes, would create the impression that receipt of a contribution automatically impairs the judge’s integrity.
Essentially, the opinion continued, a strict recusal rule would be contrary to the right to vote: “We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens’ votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case.”
A dissenting justice underscored that the integrity at stake, more than that of the voters or the political process, was the court’s. She wrote,
Unlike the majority, I conclude that the purpose of a recusal rule is to maintain a fair, neutral, and impartial judiciary. A fundamental principle of our democracy is that judges must be perceived as beyond price. When litigants go to court, they want a judge who will decide the case based on the facts and the law. They do not want the umpire calling balls and strikes before the game has begun.
And last year, by another 4-3, right-left vote, the court ruled that a decision by a justice not to recuse himself in this kind of situation is final and cannot be reviewed by the rest of the court. The rule violates a bedrock legal principle: no one should be a judge of their own case, lest they damage their own credibility and the authority of the court. The Wisconsin high court’s recusal rule is now laxer than the one applying to all federal judges except those on the U.S. Supreme Court—and that court’s practice of letting justices do what they deem best is so controversial that Chief Justice John Roberts felt compelled to defend it in his 2011 report on the federal judiciary, unpersuasively in the view of the Senate Judiciary Committee, which voted in favor of a bill requiring the court to adopt the federal code of conduct.
The flow of private money into the state’s judicial elections has changed the balance of the Wisconsin court and shifted the tilt of the decisions it makes. Most justices no longer consider being seen as beyond price as a primary ingredient of fairness. Instead, they have altered and, really, lowered their standards of ethics to accommodate the role money plays in deciding the makeup of the court, insisting that their duty to voters takes precedence over their concern about being impartial judges, or about appearing impartial.
As these events unfolded in Wisconsin, the U.S. Supreme Court made two major decisions that first appeared to strengthen the rule of law and then grossly undermined it, clearing the way for a cascade of money from special interests in American elections.
In Caperton v. A. T. Massey Coal Company, by a 5-4 vote in June 2009, with the conservative Justice Anthony Kennedy creating a majority with the four moderate liberals then on the court—Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—it ruled that the Constitution requires a state judge to disqualify himself when someone with a major personal stake in a case has spent a lot of money to elect him. Otherwise, the court found, due-process rights of other litigants before the court would be violated.
In Citizens United v. Federal Election Commission, by a 5-4 vote in January 2010, with Kennedy joining the court’s four other conservatives—Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito—the court ruled that money equals speech and that placing limits on the independent spending of corporations, unions, and other organizations in political campaigns would infringe on their right to free speech under the First Amendment.
In Caperton, the coal company’s top executive, Don Blankenship, spent $3 million to elect a judge in West Virginia who cast the swing vote in a 3-2 decision throwing out a $50 million jury verdict against the company. Here is the nub of Kennedy’s majority opinion about the situation after the judge, Justice Brent D. Benjamin, was elected:
So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor’s company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.
A dissent by Chief Justice Roberts, on the other hand, made clear how much sympathy the Supreme Court’s four conservatives have for the views of their counterparts on the Wisconsin state bench. He wrote that there was no basis under the Constitution for requiring judges to disqualify themselves in matters involving people who had spent very large sums to elect them. His primary concern was that because the legal standard on which the majority’s position rested was, in his view, vague and unlimited, it would likely lead to an increase in the number of allegations of bias on the part of judges, which would “do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” But the opinion went far beyond disputing the basis for the majority’s position. Roberts dissented from the view that politics is undermined by corruption resulting from the outsize access and influence of people or organizations with money. At the time, it was a dissent from the law of the land.
In 1976, the Supreme Court underscored the need for vigilance in upholding limits on contributions to political campaigns. In 1990, it did so even more forcefully when it expanded the scope of vigilance and upheld limits on independent spending by corporations, to prevent “a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
In Caperton, Justice Kennedy recounted for the majority that Blankenship, the chairman, chief executive, and president of the Massey coal company, contributed $1,000 directly to Benjamin’s campaign, almost $2.5 million to a political organization supporting Benjamin called “And For The Sake Of The Kids,” and more than $500,000 on independent expenditures to support him with TV and newspaper advertising, direct mail, and other campaign tools—three times the amount spent by Benjamin’s own campaign and 50 percent more than the combined spending of Benjamin and his opponent.
Roberts countered that aside from Blankenship’s $1,000 campaign contribution, the millions he contributed otherwise were “independent expenditures” and—the emphasis is the chief justice’s—“Justice Benjamin and his campaign had no control over how this money was spent.” The organizations to which Blankenship contributed might have been “ham-handed” in campaigning for Benjamin or caused “a backlash” against the candidate, Roberts continued: how could Justice Kennedy and the other justices in the Caperton majority confidently say that the interests of the Benjamin campaign were aligned with those that Blankenship supported with his independent spending—which Benjamin “had no control over”? Blankenship had also contributed heavily to other West Virginia elections: to the chief justice, that undercut the notion that the money he spent in this one was intended to influence the outcome “of particular pending litigation”—even though it also raised the obvious, contrary possibility that just as Blankenship was trying to influence the outcome in the Massey case, he had also been trying to achieve particular ends when he spent heavily on other elections.
Less than eight months later, with Justice Kennedy now joining the conservatives, the Roberts Court issued its ruling in Citizens United, by any measure a landmark. The central premise of the majority opinion, again written by Kennedy, was what Roberts foreshadowed in his Caperton dissent—that money does not “give rise to corruption or the appearance of corruption.” Although it might result in “influence over or access to elected officials,” Kennedy wrote, that is not the same as “quid pro quo corruption,” or bribery.
A related premise of Kennedy’s mirrored what Roberts wrote in his Caperton dissent:
The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.
The First Amendment view that Citizens United rested on was absolute, treating limits on spending in politics as a form of censorship. It became the signature ruling of the conservative majority, and thus the Roberts Court, as much for how it decided the case as for the decision itself. On its own initiative, the court turned a narrow issue of interpretation about the 2002 McCain-Feingold law, the first major federal law in a generation regulating campaign finances, into a fundamental choice about the meaning of the Constitution.
The nonprofit ideological corporation called Citizens United had produced a 90-minute propaganda film attacking Hillary Clinton as a candidate for president. During the 2008 election, Citizens United made a $1.2 million deal with a cable operator to let cable subscribers stream Hillary: The Movie for free. The Federal Election Commission said that this kind of broadcast and ads for it could not be paid for by corporate funds because, as “a broadcast communication,” the film was covered by the McCain-Feingold law. A federal district court agreed.
The questions for the Supreme Court were whether the statute’s rule about broadcasts funded by corporations applied to video on demand and whether an exemption for some nonprofits from the statute’s rule limiting corporate spending extended to ideological nonprofits like Citizens United. Instead—without a full factual record on which to base its decision, because neither Citizens United nor the government considered the issue part of the case, and without either party raising it—the court addressed whether the Constitution allows limits on independent spending by corporations and other organizations to prevent corruption in politics.
In a sweeping gesture of self-empowerment, the conservative majority changed the law of the land. The court overturned the 1990 precedent limiting independent spending and, eroding a wall between corporations and elections that had stood since 1907 in a federal statute called the Tillman Act, overturned part of the McCain-Feingold law. The chief basis for the ruling is that independent spending, by definition, cannot corrupt a candidate in an election because the spending is not coordinated with that of the candidate’s campaign.
This premise has been widely criticized on factual grounds, but it is even more vulnerable as the legal conclusion Justice Kennedy meant it to be—that since it is illegal for independent spending to be coordinated with campaign spending and the law puts a candidate on notice about the taint of that spending, a candidate simply cannot be corrupted by it.
This notion seems woefully naive, and Kennedy appears to have forgotten what he had written in Caperton. There, he said that Blankenship’s “pivotal role” in Justice Benjamin’s election required the justice to recuse himself because he would “feel a debt of gratitude” for the “extraordinary efforts” Blankenship made “to get him elected.” Even without evidence of a bribe, Kennedy explained, the independent spending raised a concern about corruption.
But Kennedy saw no contradiction in his Caperton and Citizens United opinions: “The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge,” he wrote in the latter. “Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.” Judicial elections, in other words, were a special case.
Two years after Citizens United, however, there is no doubt about the ruling’s enormous effect on American elections. And there is no doubt about which of Kennedy’s competing views better describes how American politics actually functions. Justice Ginsburg commented in February 2012 that waves of spending in politics since 2010 made “it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ ”
Taking a cross section of recent presidential campaigns each year as of early May, spending has grown from $24.6 million in 2004 to $59.1 million in 2008 to $118.6 million in 2012. The surge in independent spending—so much of it by super political action committees, or super PACs, supported by corporations, unions, and wealthy individuals—is allowing big-money contributors to drown out competing voices in politics. It ensures that the economic inequality reflected in these concentrations of wealth extends to political inequality—and to the inequality of opportunity, security, and everything else connected with them.
The comedian Stephen Colbert has become a vigorous critic of Kennedy’s misguided reasoning in the Citizens United decision. “Money equals speech,” he jested on ABC TV’s This Week program last January. “Therefore, the more money you have the more you can speak. That’s just—that just stands to reason. If corporations are people, corporations should be able to speak”—and speak and speak.
But not all states agree. As the Montana Supreme Court explained, when corporate “speech” in campaigns is unlimited, the effect is barely distinguishable from bribery. “Clearly the impact of unlimited corporate donations creates a dominating impact on the political process,” the court said in December 2011 in a 5-2 ruling upholding the state’s campaign finance law, “and inevitably minimizes the impact of individual citizens.”
Addressing a problem that has not yet been overwhelming in that state but easily could be, the opinion went on,
Montana judicial elections would be particularly vulnerable to large levels of independent spending, both in terms of fairness and in terms of the public perception of impartiality. Litigants appearing before a judge elected after a large expenditure of corporate funds could legitimately question whether their due process rights were adversely impacted.
In February, the U.S. Supreme Court stayed the Montana ruling while it considered whether to review the state court’s decision.
A Citizens United dissent by Justice John Paul Stevens five months before he retired addressed this issue:
[T]he consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, the Court today unleashes the floodgates of corporate and union general treasury spending in these races.
The transformation of judicial elections in the previous decade from modestly funded, almost exclusively local affairs to expensive national contests has led former Supreme Court Justice Sandra Day O’Connor to make reform of judicial selection her crusade in retirement. Otherwise, she said, “The perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”
The Brennan Center for Justice, a nonpartisan public policy and legal institute, has reported that in state high court elections in 2009–2010, lawyers, lobbyists, and business interests contributed almost 40 percent of the money: $15 million of $38.4 million. Organizations with social interests, like the Law Enforcement Alliance of America and the National Organization for Marriage, also made major contributions.
Reducing justice to politics, now awash in money and swayed by deep pockets, judicial elections show how a central institution of democracy can be turned into a grubby embarrassment to good government that sometimes appears to function as a puppet of plutocracy. Independence, the foundation of impartiality, fairness, and trust in courts, has increasingly been replaced by dependence on big contributions. The purpose of these donations in many cases is to ensure that courts are controlled by judges who favor the interests of donors and to thwart democracy.
In Wisconsin, there is growing interest in replacing judicial elections with merit selection—by a nonpartisan committee of lawyers and others who pick candidates on the basis of ability, experience, character, and temperament and recommend them for appointment by the governor—to reclaim justice from politics and repair the Wisconsin Supreme Court’s reputation. The merit selection committees now operating in 35 states and the District of Columbia focus on a candidate’s professional reputation and the ability to communicate effectively—and, above all, on the prospective judge’s mental health—and much less on political experience or affiliations, thereby minimizing the role of partisan and other kinds of politics and allowing scant room for influence by money.
Shirley Abrahamson has been the Wisconsin court’s chief justice since 1996 and, at 78, is one of the most respected in the country. She is the leader of the court’s liberal minority and might be expected to champion a move to merit selection. But she is an avowed defender of judicial elections. In her 2010 State of the Judiciary Address, she said, “Judicial elections and judicial independence go hand in hand. … I believe the people ought to decide who sits on the bench.”
To say otherwise would require her to challenge the Wisconsin Constitution and 164 years of state tradition. The state constitution’s article on the judiciary calls for election of the court’s seven justices for 10-year terms. Following Mississippi in 1832 and New York in 1846, Wisconsin was one of 18 other states that embraced judicial elections. They were a way for citizens to take back power over state government from moneyed interests that had left states mired in debt following a protracted economic depression.
They were also distinctly American. The United States is the only country in the world where judges are elected. Elsewhere, they are appointed by heads of government, legislatures, or judicial selection commissions, or they are selected as career civil servants. But nowhere are they picked by voters.
In his book The People’s Courts, Harvard Law School’s Jed Handelsman Shugerman explains that elections were a way to separate the courts from the other branches of government and “enforce the ‘people’s’ constitutional rights against government excess,” insulating them from “corrupt governors and legislatures.” In other words, “judicial democracy emerged to promote judicial independence.” But, Shugerman writes, the definition of “judicial independence” has changed over time. For America’s founding generation, it meant freedom from control by the British crown. Then, in the 19th-century wave of revolt, it became independence from the elected, political branches of government and the special interests that controlled them. Today, it means independence from pressures that create the appearance (even if not the reality) of bias, whether political, pecuniary, or personal.
The people got what they wanted from 19th-century elections: judges were activists in the sense of confidently striking down state statutes. But most of what they struck down encroached on their own power, like efforts to reduce their courts’ jurisdiction, which judges guarded because of their mandate from the people.
Current understandings of conservative and liberal rhetorical positions about the role of government are the opposite of those that prevailed when judicial elections caught on. Then, the privileged expressly used the power of the state for their own ends and did not trumpet the virtues of limited government. An economic crisis, the Panic of 1837, led to the widespread view that government and those who controlled it were corrupt and looking out only for their own interests. Judicial elections were part of a broad shift in favor of limited government, what Shugerman calls “laissez faire liberalism.”
Wisconsin wrote judicial elections into its constitution in 1848. Over the years, it has entertained—and then dropped—several proposals to replace them with merit selection, most recently in July 2011. But any change to the current system would need to be preceded by a constitutional amendment—an arduous process that would require two consecutive state legislatures to pass the amendment before it could be put to voters in a referendum.
Even if Wisconsin legislators could agree on the amendment, it’s uncertain that voters would approve it. A poll last July by the group called Justice at Stake found a striking decline in confidence in the state supreme court (only 33 percent approved of the court’s performance, down from 52 percent three years before) and an even more striking concern about how judicial campaigns were compromising the state’s courts (all but 4 percent said they were concerned about whether the courts were fair and impartial). But most of those polled (59 percent) were against a switch to the appointment of justices. Even when responding to a proposal for appointment followed by retention elections, less than half (49 percent) supported the idea.
Judicial elections, as Wisconsin originally adopted them, were supposed to remind judges that the law was a compact between government and the people, with judges held accountable at the ballot box. They were meant to be an open means to an unassailable end, a way to keep law in sync with democracy. But as Joseph A. Ranney, a Wisconsin lawyer who is a leading commentator about the Wisconsin Supreme Court, explained, the current debate about replacing judicial elections with some other mechanism is importantly different from that of the past because it is about the threat to the law from democracy. “Unlike their predecessors,” he wrote last December in Wisconsin Lawyer, “current merit-selection supporters have shied away from challenging voters’ ability to evaluate judicial candidates and from charges that Wisconsin’s judges are catering to popular sentiment to win reelection. Instead, their arguments have centered on the campaign-finance system, particularly the fact that it allows anonymous individuals and groups to spend unlimited amounts of money promoting judicial candidates, thus giving them a great deal of control over candidate recruitment and success.”
The effect of cash-fueled, no-holds-barred elections in Wisconsin and other states is devastating to the judicial system because it advances the perception that justice is for sale. State courts, which hear 99 percent of the cases that reach courtrooms in the United States, define the rule of law for most Americans. The spectacle of would-be judges hurling sound bites at each other raises the question why citizens should respect that rule when the people who end up shaping it from the bench demonstrate such injudicious traits to get there—and, worse, after they’ve arrived. “A public that does not trust its judges to exercise even-handed judgment will look upon judicial independence as a problem to be eradicated,” Chief Justice Abrahamson warned, “not a value to be preserved.” The ruling of the Supreme Court in Citizens United, because of the cash it released and how that has eroded citizens’ confidence in state courts, has likely done more to undermine people’s confidence in the rule of law than any recent decision of America’s highest court.
Leading elections law scholars, like Richard Hasen of the University of California–Irvine School of Law, have some hope that the Supreme Court might eventually be convinced that judicial elections are different—that states should be allowed to impose limits on independent spending in judicial campaigns, even if they cannot in elections for political office. But the scholars’ optimism is outweighed by their conviction that, in most states, judicial elections are here to stay: the same money engulfing the electoral process is very likely to defeat any proposed amendments to state constitutions in favor of merit selection.
In the many states where judges are elected, it will require a great political struggle to bring about this change. As in Wisconsin, however, judges throughout the country who benefit from major independent spending by groups whose interests are affected by their rulings regularly insist that their overriding interest is to uphold the rule of law. If that’s true, they should join the campaign to replace judicial elections with merit selection. Judges themselves should lead the effort to reclaim justice from politics—and from the money that defiles it. Until that happens, the rule of law will continue to be ravaged by partisan election cycles that degrade the judiciary’s fairness, impartiality, and independence.
Lincoln Caplan is a visiting lecturer in law at Yale Law School and a member of the editorial board of the Scholar. He is also a senior advisor to Encore.org.