Our great nation was founded amongst the rubble of colonies that revolted from tyranny, exploitation, and an impartial system of justice. Establishing the greatest democratic experiment in human history, the founding fathers attempted to create a free, equal, and just society where each individual was entitled to his life, liberty and pursuit of happiness. Included within this doctrine was the implementation of a judicial branch that was to be independent from influence of any social, cultural, or political factors and rule within the confines of a proper interpretation of the country’s founding document, the Constitution of the United States.
In 1789, with the passing of the Judiciary Act, the federal government granted power to the states to establish inferior courts. The principle of federalism allowed the states to create their own court systems, in contrast to the federal level, where judges were appointed by the President and approved by the Senate [PBS.org]. With this, the states were allowed to create systems as they see fit, outlined by their own state constitutions. Some dictated that judges would be selected through elections, appointment, or a hybrid of both which involves the electorate voting in retention election after a specified term. Of the 50 states in the union, 39 have some type of judicial elections. It seems fundamentally contradictory to establish an impartial system when exposing it to the vulnerability of partisan politics, mud-slinging elections, and more recently and explosion in campaign spending, brought on by the controversial decision of Citizens United. However, elections within states weren’t a foreign concept during the early years of the United States. Even within the Declaration of the Independence, Thomas Jefferson accused King George of controlling the courts to the extent that they were loyal to his wishes rather than justice. In addition to this sentiment at the birth of our nation, with the rise of Jacksonian Democracy came a renewed interest in the ability of the electorate to have a more personal and greater control over the government; therefore, this came with the want of the people to establish a justice system that was loyal to the people of the region.
It seems like a minor area of our political arena, and it often tends to be overlooked as an unimportant aspect of elections; however, 95% of all legal proceedings in this country take place at the state level. Therefore, it is absolutely and quintessentially vital that state judicial systems remain free from the influence of external factors.
The results are undeniable, irrefutable and cause for immediate and sweeping change. Justice has long been personified by Lady Justice, blindfolded and holding a scale. With increasingly higher amounts of campaign expenditures each year, these scales are tipped and the impartialness of the courts are near impossible. This report will aim to identify when and where these infractions have occurred, the changes within campaign financing, a comparison of state judicial systems and elections and finally, the steps that can be taken to reform a system that is designed to promote blind justice.
State Judicial Systems
Although there is research to give a clear and accurate description of every state in the nation’s judicial system, it would be repetitive, cumbersome, and ultimately serve to overwhelm the overall mission of this report. With that said, it is still important to illustrate the various systems of state judicial branches; therefore, a handful of selected states will be analyzed to illustrate not only the diversity of these systems but also the intricate complexities. The common conception has long been held that the justice system is a rigid, fixed, and constant structure; however, research illustrates a contradicting reality. Over the course of history, states have changed and modified their respective court systems
Alabama is one state that utilizes a partisan election style format for judicial selection, and justices serve a six year term. In the chance there is a vacancy during a term, the Governor will appoint a qualified individual. Between the years of 2000-2009, judicial campaigns saw an explosion in spending, with Arizona at the top of the list. Within the state $40,904,205 was spent on judicial elections. This amount is almost as much as the following two states Ohio and Illinois combined.
Unlike some other states, Alabama imposes judicial campaign oversight committees to advise candidates and judges on proper campaign conduct. The committee was established after the 1996 election, for 1998. It was widely viewed throughout the state as a success and was later established in two following elections in 2000 and 2006. The first change to the system in Alabama came in 1819, which determined justices through an election for a life term by both houses of general assembly. Eleven years later the term was reduced from “good behavior,” to six-year terms. Then, in 1850 circuit court justices were elected by the people and seventeen years after that change, judges of all levels were elected by the people. More recently, in 2009 Senate Bill 28 set new qualifications for judges, which included setting and expanding the required amount of time a candidate must be licensed in law.
Alabama does have cannons of judicial ethics that regulate judicial elections. Candidates for judicial positions cannot make any promise of how they will decide cases other than remaining impartial while serving their term, or announce conclusions on law or pending litigation. They also cannot misrepresent their identity, qualifications, present position or other facts. In attempts to combat the often negative tones that are associated with campaigning the cannons attempt to restrict candidates from spreading false information about themselves or their opponents, whether the information is knowingly false or reckless disregard that information is false. In the 2000 election, there was a dispute between two candidates for the Republican nomination for the chief justice position that turned into a lengthy legal battle that was decided almost two years later. After being portrayed as being soft on crime by Justice Harold See, Judge Roy more took his fight to the court; however, more wound up winning the primary thus making the legal battle irrelevant, but any charges against See were dropped in 2002. [American Judicature Society; Judicial Selection]
There are only five states within the United States that have explicit recusal requirements for judges when campaign contributions reach a certain limit. Although Alabama has seen an outrageous amount of campaign expenditures for judicial elections, the state is credited with being a trailblazer in regards to recusal reform. A trial court must recuse themselves from a case when a litigant or attorney has given more than $2,000 to a judge’s campaign, and for appellate judge’s the limit for recusal is $4,000. Although it has been widely complimented by experts as a needed reform, the legislation that was passed in 1995 has been yet to be implemented due to federal interference from Section 5 of the Voting Rights Act. The Alabama high court refuses to implement the reform efforts until the stalemate is resolved, and a federal court rejected a lawsuit to move the process along calling it a, “political game of chicken.” [Corriher, November 2012]
Michigan is another state that made the top ten costliest states for judicial campaigns, ranking number six, with $13,007,261 spent over the span of 2000 to 2009. Coming off a campaign season where expenditures exceeded the hundreds of millions of dollars, $13 million may not seem all that astonishing; however, judicial candidates are usually unknown, have little name recognition, and rely on advertising to build a supportive constituency.
Much like Alabama, Michigan implemented reactionary measures after complaints of misconduct from candidates during the 1996 elections, but instead of a government created committee, the State Bar of Michigan implemented a pilot program for the 1998 election. It was deemed the 1998 Michigan Judicial Election Campaign Conduct; however, candidates can choose whether or not to participate in the agreement. Five-member judicial election panels were created throughout Michigan to monitor the campaigns and investigate complaints on judicial campaign conduct, and issue rulings. If the misconduct continued they had the ability to issue public statements and if necessary refer complaints to the attorney grievance commission or the judicial tenure commission. The state bar advocated that the pilot program was a success; however, it was not continued. [American Judicature Society; Judicial Selection]
There are some regulations on judicial elections within Michigan’s code of judicial conduct. Canon 7 of the code prohibits judicial candidates from making any pledges or promises of conduct in office other than being impartial. They also cannot publicly say anything that they know is false. Most importantly however, they cannot solicit or accept campaign funds or “public support” by utilizing their office in an improper way but the can establish committees to secure and manage campaign funds and gain support from the electorate. Other than some restrictions on the time period in which these committees can actively campaign, they are barred from soliciting contributions from lawyers that are more than $100 per individual. The Michigan Supreme Court eliminated a section of the code of judicial conduct that barred judicial candidates from making misleading statements.
The flexibility and the fluidity of the courts are apparent in Michigan as well. In 1836, the Supreme Court justices were appointed by the governor with senate consent to seven year terms; however, Circuit court judges would be elected by the people to four-year terms. Fourteen years later Supreme Court justices were elected by the citizens of Michigan to eight year terms, and Circuit justices were increased to six year terms from four. Changes remained stagnant for a while, but a little over half a century later the legislature passed a law that now allowed political parties to nominate Supreme Court candidates at party conventions. Thirty-one years later, some slight changes were made through a constitutional amendment that called for nonpartisan nomination and election of judges, with the exception of Supreme Court justices who would be exempt from these changes. In addition to the amendment, it required that there would be an incumbent designation on the ballot for sitting judges up for reelection.
In 1963, a new constitution for Michigan was created with changes that adapted the judicial selection process even further. Special elections would now be held for vacancies in positions, and now the court would select the chief justice, not the electorate. Incumbent judges could also now circumvent the nomination process by filing an affidavit of candidacy. Furthermore, a court of appeal was created with the new draft. Only a short while after the constitution was created, in 1968 the change was made through constitutional amendment that the governor of Michigan would have the restored ability of filling judicial vacancies through appointment. In 1996, the voters of Michigan approved another constitutional amendment requiring judges to have practiced law for at least five years.
As elections for the Supreme Court in Michigan are more combative and contested, they also become extremely more expensive, with an increasing amount of money being spent by independent third-party groups. In 2002, 51% of the television advertisements for a candidate were paid for by independents. Only four years that figure seen a dramatic increase 36%; therefore, in 2006, 87% of advertising spots were sponsored by independent groups. This is indicative of the problems state judicial systems are experiencing across the nation, due to the grey area of regulation on these groups. Often there is knowledge readily available to the public; however, Michigan has no disclosure requirements for groups that run on “issue” advertisements.
Michigan has yet to adopt any type of recusal reform, although that isn’t uncommon for many states in the country. Unlike Alabama, Michigan has yet to recognize the need for recusal form in the wake of rising campaign costs for judicial elections. Michigan has held a series of hearing in the House Judiciary Committee on the topic of recusal standards; however, public trust in the state system is steadily declining due to judges refusing to recuse themselves with little if any explanation of their decision. The National Institute on Money in State Politics, which monitors and reports campaign costs on judicial elections, reported that an astonishing 86% of the cases heard by the Michigan Supreme Court in the 1990s involved at least one contributor to at least one justice.
In significant contrast to Alabama and Michigan, Massachusetts has no judicial elections of any kind. For justices of the Supreme, Appeals, and Superior Courts candidates are nominated through gubernatorial appointment. There is only a slight difference between the three courts’ nominating process. For the Supreme Judicial Court of Massachusetts candidates are appointed with approval of the governor’s council. For the two lower courts, gubernatorial appointments come from nominating commission with the approval of the governor’s council.
Also unlike many another states across the country, Massachusetts has no method of retention, and no standardized length of term except judges can only serve until the age of 70. The state constitution outlines these standards, and therefore to change it, an amendment would be required, which would need a three-fifths vote of both houses of the legislature and passed by a majority of the electorate. As one of the oldest states in our country, one would expect some changes to the judicial system over the course of the extensive history; however, there has been next to nothing changed since the establishment of the state from a colony. In 1780, the constitution outlined that governors appointment justices who would then serve a term of life. It wasn’t until nearly two hundred years later in 1972 that the next changes were made, which established at justices could only serve until the age of 70. To give some context to that regulation, life expectancy for someone born in 1972 was 71.2 years and in 1935 it was roughly ten years less than that. So, as one can deduct that terms to the age of 70, are still significantly generous. [American Judicature Society; Judicial Selection]
Virginia’s judiciary branch utilizes an uncommon system of judicial selection. In this state members of the legislature are responsible for electing judges. Prior to 1995, Democrats controlled the general assembly in Virginia for many years and little if any bipartisan deliberation took place. After 1995, the Senate was split which led to rule changes on the process of selecting judges. As a result, a more emphasis was put on local delegations of Senators whose constituency occupied a certain district would recommend nominees. If the delegation was an agreement, the Senate would follow their recommendation, but if they didn’t agree, other candidates were nominated and debated on the floor. Four years later in 1999, Virginia Republicans took back the majority in the house and senate and they established a joint judicial advisory committee for vacancy positions and advise members of the legislature on judges’ qualifications for the open positions. In addition to these changes, Republicans established local citizen commissions to evaluate candidates for circuit and district positions.
There were some changes that took place over the course of Virginia’s history. Much like Massachusetts, Virginia, one of the earliest founded colonies, has maintained a relatively similar stance on their judicial system since 1776. The only change came in 1850 when the selection process changed to judicial elections by the people rather than the legislature; however, in 1864 this selection process was abandoned and reverted back towards giving the nomination process to the legislature. [American Judicature Society; Judicial Selection]
Issues & Reforms
“Just as no man is allowed to be a judge in his own cause, similar fears of bias arise when…a man chooses the judge in his own cause.” – US Supreme Court, 2009.
This quote came from the responses of members of the US Supreme Court after overturning a decision made by a judge in West Virginia. The judge was repeatedly asked to recuse himself from the case by the plaintiff due to the fact that the defendant, an executive of a local coal company, donated $3 million dollars to and independent entity that campaigned on behalf of the judge, which was not only more than any other person who contributed to the campaign but also the judge’s own committee. The judge overturned a $50 million dollar verdict that was originally awarded to the defendant. The US Supreme Court eventually heard the case and stated that the judge should have recused himself from the case because of the probability of bias. Unfortunately this happens all too often in our state courts. Judges have much leeway when it comes to whether or not they choose to recuse themselves from a case or not, and do not have to provide relatively any explanation. This case, Caperton V. Massey became infamous, and is widely regarded as a specific instance that completely illustrates two flaws of the current state judicial selection processes across the country. First, it depicts the fundamental problem of campaign finance disclosure laws that vary from state to state, creating a loose system of patchwork that does nothing to alleviate citizens justified concerns of impartiality of the court system.
The numbers and the facts illustrate the dismal reality: 95% of legal proceedings take place at the state level, 87% of state judges run in elections, whether it be through retention or to gain a seat, and 97% of judges said they feel a “great pressure to raise money in years they faced election,” and 84% of judges are concerned with increasing presence of outside groups in funding judiciary elections.
During the 2009-2010 election campaign seasons, three out of four attack ads were launched by an outside group. Corporations and pro-business outside groups composed of a majority of the outside group spending. [Brennan Center, Buying Justice] In comparison lawyers donated 21% of the total funds donated to Supreme Court Candidates and pro-business independent groups donated 44% of the funds. Conservative groups spent roughly $8.9 million in high court elections in 2010 compared to a meager $2.5 million from progressive groups; however, these numbers have the potential to be even higher due to the ability of outside groups to circumvent financial disclosure laws; therefore, making it even more difficult for an impartial court system. [Center for American Progress; Big Business] Although it may seem redundant it’s important to illustrate that any restrictions that were in place on outside spending limits have become obsolete as a result of Citizens United; however, even prior to that decision outside groups television advertisements during the judicial campaigns accounted for 90%.
One group has stood out from the crowd, and has thrust itself into the realm of judicial elections, more so than any other. The US Chamber of Commerce has become of the most influential players within these elections, often funding candidates that are pro-business and closely align with their ideals. From 2001 to 2003, the Chamber’s preferred candidates in judicial elections won 21 out of 24 elections, which roughly means they won 87.5% of the time. Along with their support comes large donations of money, and in two Ohio Supreme Court Justice races in 2006 the Chamber spent over $1 million. In a recent high court election in Alabama, 4 out of every 10 dollars were spent by the Chamber of Commerce. [Center for American Progress; Big Business]
Left in the wake of the controversial decision of Citizens United, judicial selection processes and state governments are left still trying to adjust to the new political culture that rewards those with deepest pockets. Public financing systems, which were implemented in various states to help support candidates’ opponents would exceed a certain threshold are becoming unsustainable due to the ever increasing campaign expenditures and in some cases have been ruled unconstitutional because the system hinders First Amendment rights; however, the counterargument to these claims are the obvious perception that only the candidate is served through an uneven playing field, not the electorate or constituency.
Probably the most disturbing research that analyzed was a report and data provided by the Center for American Progress in their study Big Business Taking over State Supreme Courts. Within this report, all high court rulings on cases where an individual sues a corporation were examined from the time period of 1992 to 2010 in six states that have experienced the highest influx of judicial campaign cash: Alabama, Texas, Ohio, Pennsylvania, Illinois, and Michigan. The Center found that there were 403 cases that met their criteria between 2000 – 2010, and has estimated that the high judges ruled in favor of corporations 71% of the time. The high courts that experienced the most campaign spending are significantly less likely to rule in favor of an individual who has been injured, scammed, or subjected to discrimination when the defendant is a corporation; thus illustrating a measurable link between the influence of pro-business and conservative groups on the decisions of “blind” justice.
After this report and analysis, a depictive picture is given of the nature of judicial selection processes across the nation. As outlined by the Constitution of the United States, their ability allows them to establish and maintain their own judicial systems. Outlined in this review of these varying methods, are three different ways of selecting a justice: election (partisan or non-partisan), gubernatorial appointment, and legislative election. Each process has its own benefits and shortcomings but one thing is clear the reduction of influence within judicial system by external factors whether it be exorbitant amounts of campaign spending by outside groups or intentionally misleading voters in growingly contested high court elections must be reduced as much as possible. As a nation, we must adapt clear recusal reform laws that require any judge to remove himself from a case when financial contributions exceed a certain threshold and provide oversight to the system. In addition, we need to eliminate the ability to circumvent campaign financial disclosure laws for outside groups during the judicial elections, so citizens can have reasonable expectations of impartiality within the justice system. Finally, we must encourage the production of objective voter guides for candidates running for the bench to better educate the respective electorates without partisan politics clouding the reality. It is of paramount importance to return the impartiality to state courts, and remove from the scales of Lady Justice the weight of shadowy campaign contributions and the intentional disservice done to the electorate of citizens.
Corriher, Billy. Big Business Taking over State Supreme Courts. N.p.: Center for American Progress, Aug. 2012..
Corriher, Billy. Partisan Judicial Elections and the Distorting Influence of Campaign Cash. N.p.: Center for American Progress, October 25 2012..
Corriher, Billy. “Strong Recusal Rules Are Crucial to Judicial Integrity.” Center for American Progress (Nov. 20th 2012): n. pag. Web.
Edwards, Todd. “Judicial Selection in Southern States.” The Council of State Governments – Regional Resource. N.p., Feb. 2004..
An Extreme Makeover: Why Michigan’s Judicial Recusal Standards Needed Reconstruction and Why More Work Remains to Be DOne. Vol. 88:97. N.p.: University of Detroit Mercy Law Review, n.d..
“Judicial Selection in the States.” Judicial Selection in the States. American Judicature Society, n.d. Web. 05 Dec. 2012.
Resolution on Judicial Disqualification Determinations. N.p.: American Bar Association House of Delegates, August 8-9 2011..
Sample, James, Adam Skaggs, Johnathan Blitzer, and Linda Casey. The New Politics of Judicial Elections 2000-2009 Decade of Change. Ed. Charles Hall. Brennan Center for Justice – Justice at State Campaign, n.d. Web.
Shugerman, Jed H. “Economic Crisis and The Rise of Judicial Elections and Judicial Review.” Harvard Law Review Volume 123 Number 5. N.p., n.d. Web.