For casual news fans and avid U.S. Supreme Court junkies alike, the past week’s headlines have been dominated, not surprisingly, by stories about Obergefell v. Hodges, the same-sex marriage case. But there’s another story that emerged from the Court this week that deserves special attention in this forum: Williams-Yulee v. Florida Bar Association. In that case — issued the day after oral argument in Obergefell — the Court once again waded into America’s longstanding but peculiar experiment with judicial elections.
For more than 150 years, the United States has stood apart from most of the world in its practice of electing judges; today, 39 U.S. states elect at least some judges and 87% of state court judges will stand for an election at some point in their careers. Why this fascination with judicial elections? Well, it can be chalked up to the populist origins of the practice — as a measure for combating corrupt patronage networks in the mid-1800s — and the belief that elections render judges more democratically accountable.
But as states like Florida have learned, judicial elections never lived up to their populist promise. In fact, there was a time, not so long ago, when corruption ruled Florida’s judiciary. The stories abound: There was the judge in the late 1960s who required lawyers to contribute to his campaign before they could argue. Even more embarrassing were the three members of the Florida Supreme Court who resigned in the early 1970s after getting caught pressuring lower courts to rule in favor of the justices’ campaign donors, allowing an interested party to ghostwrite an opinion, and enjoying a gambling spree in Las Vegas courtesy of a dog track that was litigating a case before the court. The reason for this gap between theory and practice: the need to raise campaign funds undercuts judicial integrity and invites quid pro quo corruption.
Now, Williams-Yulee turned out to be a victory for anticorruption: the Court held that Florida could bar judicial candidates from personally soliciting campaign contributions. Unfortunately, though, the victory is small and fleeting: the Court’s reasoning focused on the extremely narrow nature of the Florida rule and impliedly rejected most campaign finance restrictions in judicial elections (beyond contribution limits). So even after Williams-Yulee, states still have little in their arsenal with which to combat the evils of judicial elections. Maybe then, in an era when more and more money is flowing into judicial campaigns, Williams-Yulee ought to be our wake-up call — a sign that its time for the United States to kick the “insanely and characteristically American” habit of electing judges.
Judicial elections have been around in the United States since at least 1832. But the real trouble began in the mid-1980s when political strategists learned a dangerous truth: it is more cost-effective to buy influence with individual state judges (who might rule on your cases) than it is to buy sufficient blocs of support in state legislatures. What began with a series of conservative campaigns to unseat liberal state justices in California, Texas, and Alabama, has since grown into a nationwide, bipartisan effort to politicize judicial elections. Sadly, this trend has only accelerated in the past 15 years, as the U.S. Supreme Court’s decisions like Citizens United and McCutcheon — striking down limitations on campaign contributions — and Republican Party of Minnesota v. White — holding that judicial candidates may not be prohibited from speaking out on divisive legal issues — have contributed to a seven-fold increase in third-party spending in judicial campaigns and an abrupt surge in attack ads.
Because judicial elections are both foreign to many of our international readers and so ingrained in American culture, it’s worth considering why this spiral of politicization is so troubling. There are, of course, studies showing that elections produce judges who are less qualified, and that voters are more susceptible to misleading advertisements in judicial campaigns. But I want to focus on two larger problems that relate to a common theme: elections are, from both a judicial integrity and an anticorruption perspective, incompatible with the ideal model of the judicial function, which envisions judges as neutral, rational adjudicators. When a judge owes his continued employment to the whims of the electorate and the largesse of campaign donors, he is prone to skew his decisionmaking in order to win votes and/or secure contributions. I discuss these problems in turn:
- The Political Performance Problem: If you accept that judges are supposed to be neutral adjudicators, it easy to see the inherent problem with judicial elections: judges will consciously or unconsciously shift their decisions toward politically popular outcomes. Several studies bear out this prediction. For instance, one study has shown that as more money is spent on “soft-on-crime” attack ads, judges side at higher rates with the prosecution. A similar study revealed that judges tend to punish criminals with longer sentences during election years, presumably in the hope that their “tough-on-crime” approach will sit well with voters.
- The Gratitude Problem: Besides the issue of politically-biased decision making, there is the separate concern that judges may feel obliged to return the favor to campaign supporters. The evidence demonstrating this problem, which can manifest itself as anything from subtle bias to outright quid pro quo corruption, is substantial. In addition to the scandals that prompted Florida to pass the law at issue in Williams-Yulee, there are countless anecdotes like that of New York Justice Thomas Sprago, who was sentenced in 2009 for soliciting bribes from parties appearing before him. And then there are the murkier stories, like the case of A.T. Massey Coal, where a West Virginia state judge overturned a $70 million verdict against the nation’s fourth largest coal company after its CEO helped raise more than $3.5 million for the judge’s campaign. As A.T. Massey Coal suggests, even where outright quid pro quo corruption cannot be proven, there is reason to worry that campaign contributions distort judicial outcomes to benefit parties with deep pockets. On this point, consider a recent study that reviewed 2,345 state supreme court decisions from all 50 states between 2010 and 2012, and found a direct relationship between the amount of money justices receive from business interests and their willingness to vote in favor of businesses appearing before them.
Sadly, these two problems will only worsen in the coming years as ever-increasing amounts of largely unregulated funds flow into judicial elections courtesy of the Supreme Court’s campaign finance cases. The question, then, is what should be done? The obvious answer is that judicial elections should be replaced with some other system, like the federal model of partisan appointment with life tenure or the Alaskan Merit Selection System, in which an independent judicial council prepares a list of qualified applicants from which the Governor must choose. But even if states aren’t prepared to do away with judicial elections in their entirety, there is more that they can do (hopefully) without incurring the wrath of the Supreme Court:
- First, states could follow North Carolina’s (sadly, former) approach and adopt public financing for judicial campaigns.
- Second, states can strengthen financial disclosure laws and better monitor spending in judicial elections—these being key areas of weakness that led two studies (discussed here and here) to give most states failing grades with respect to their (in)ability to regulate judicial campaigns.
- Third, states should — either as a matter of statutory law, judge-made doctrine, ethics rules, or state due process rights — tighten judicial recusal rules. It simply isn’t acceptable that only 12 states have recusal rules covering litigants who contributed to a judge’s campaign.
Judicial elections in the United States are a breeding ground for judicial corruption. America’s either got to kick this habit, or at least learn to start cutting back.
GAB | The Global Anticorruption Blog 
I haven’t read through the ACS report, just taken a quick look after you linked to it, but I’m still not totally convinced that it unattackably proves a causal relationship–that is, that receiving donations from businesses causes judges to favor those businesses more. As I think someone may have said in our discussion, it still seems possible that businesses are just more likely to give money to candidates who are already deciding favorably towards them. I’m sure this is something the statisticians behind the study must have considered, but at a quick glance I didn’t see them controlling for it. Perhaps it’s tricky, but if they were also able to control for, say, the strength of the case (as they did), it seems doable. Would be great to be pointed to evidence to the contrary, though. At any rate, I don’t want to seem naive; it’s hardly a stretch to think that donations influence decision-making, even if it’s through the subtle means you allude to (e.g., you spend time around the people giving you money, listen to their reasonable-sounding opinions on subjects you don’t have a lot of prior information or strong opinions about, and are persuaded). The recusal rule problem you highlight is particularly surprising and worrying.
I agree that the causation vs. correlation problem plagues some of these studies, but we seem to agree that the intuition has to be that “of course giving money to the judges influences them, that’s human nature.” If I remember correctly, one big piece of supporting evidence was that the effect of donations by business interests on pro-business outcomes was most extreme for Democratic-leaning judges, who by nature of their political leanings, tend not to be as pro-corporate in their views as their Republican counterparts.
Yes, I did notice that particular point–but then again, I still think that could be some sort of weird correlation (to baselessly speculate–nothing like criticizing a lack of data while making spurious guesses oneself!–if I was a businessperson out to ensure a judge favorable to me won, I’d rather back the person who already bought into my philosophy, which the study posits is more likely to be a Republican, than have to merely hope that my donations convinced the Democratic candidate [still assuming arguendo that the study’s supposition about party predispositions is right] who was not already on board to change his/her mind. In that sense, in a truly competitive race between a Republican and a Democrat, it wouldn’t make as much sense for a self-interested business to back the Democrat. Instead, in my mind, it makes more sense for businesses to jump in when they already think the Democrat is going to win, which could very well indicate a strongly Democrat-leaning district. In that case, the real competitive election is the primary, at which point the businesses might well invest in backing the more business-friendly Democrat among the pack…ergo, more correlation than causation. Still, as I said, that’s really me taking the extreme devil’s advocate position. I think it’s probably because I’m already sympathetic with that part of your argument that I’m wishing that one particular loose end was tied up, just so the case was even more unimpeachable.)
clarification: I should have written: “Instead, in my mind, it makes more sense for the businesses funding Democrats (if we’re still hypothetically buying into the pro-business Republican and less-pro-business Democrat theory) to have chosen to do so when they already think a Democrat is going to win,…”
On the correlation-causation question – a more generous view of judicial elections (in which we assume no causation) still raises problems. These correlations undermine the integrity and credibility of judicial because of perceived causation. Regardless of how strictly a judge decides a case on the merits, critics of the ruling can allege political motivations. Of course, this phenomenon is true for any judge in any case but the overt politicization of the process exacerbates suspicions.
Also, I am similarly shocked at the apparent absence of recusal rules!
“We find that elected judges are more productive. And although appointed judges write opinions that are cited more often, the difference is small and outweighed by the productivity difference. In other words, in a given time period, the product of the number of opinions authored and citations-per-opinion is higher for elected judges than for appointed judges.” Stephen J. Choi et al., “Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary,” 26 J.L. Econ. & Org. 290, 292 (2010).
Cann found that six of the ten top judiciaries by reputation are elected state courts. Damon M. Cann, “Beyond Accountability and Independence: Judicial Selection and State Court Performance,” 90 Judicature 226, (2007).
So on the quality issue the evidence is by no means clear that appointed judges are better than elected ones. Yes, many outside the U.S. find judicial elections strange, but remember that most judges in most countries wield nowhere near the power American judges do. Constitutional review is typically limited to specialized courts where the method of appointment involves political considerations. The French and German constitutional courts are both examples. For ordinary courts the docket is often confined to narrow technical issues where the stakes are low. When non-U.S. types think of judicial elections they are often thinking of these kinds of courts where elections wold seem odd.
I agree, Rick, that the evidence is quite mixed on whether elected or appointed judiciaries are of “higher quality” (as measured by either the sheer volume of decisions they issue or the quality of their legal reasoning). I would not, of course, make the case against elected judiciaries rely in any way on that issue; I mentioned the paper on quality in passing but I think it is irrelevant to my broader point. Whether elected and appointed judges produce work of similar quality, the “political performance” and “gratitude” problems still persist in a elected judiciary. And the “quality” evidence doesn’t undermine that point; after all, judges could still manifest bias in highly reasoned opinions — or in the millions of small decisions short of deciding a case in which judges wield tremendous discretion — perhaps by deciding a closely contested case in favor of a supporter.
As for the fact that American judges tend to wield more power than their foreign counterparts, I am not sure this alters my thought process. Just because you wield more power does not, in my view, mean that we should infringe upon (what I consider to be) the ideal conception of judicial power by subjecting it to political control after a judge takes the bench. Perhaps, then, my real problem is with judges that are allowed or required to stand for reelection. I have less of a problem with political considerations affecting the appointment of judges in the first place; so perhaps I would have less of a problem with a system where judges were elected once to a set term and were ineligible to run for reelection. Though this would suffer from the misinformation problem — raising questions whether it is better for elected representatives or the electorate they represent to weigh political considerations in making an initial judicial appointment — it would obviously reduce the political corruption problems I’ve discussed here. But I still have a problem with the idea that the exercise of judicial power should be subject to political control once the judge takes his or her seat on the bench. So while judges in the United States may wield more power, I don’t think the solution is to make them more “democratically accountable,” especially in light of the corruption risks this entails.
I think I would have a problem with one-time judicial elections with set term limits. I sympathize with your views and I find your analysis very convincing. But like anyone else, and perhaps particularly in the common law context, judges benefit from experience. It seems unwise to deliberately bar long-term service. But I do wonder what alternative voting models might look like. Do you think appointment and a retention referendum, like the Japanese system, would mitigate the problems you describe? It could maintain the democratic check while eliminating standard electioneering. Or it could just kick the can down the road, given that people are free to campaign for referenda questions.
I agree with your points that in the U.S. context, judicial elections can be a breeding ground for corruption. It’s interesting, however, because I think in other contexts, your criticisms of elected judges can apply to appointments as well. For instance, I’ve seen both the political performance problem and the gratitude problem in India, where judges are appointed. The political performance problem is just slightly different: judges are incentivized to act in politically popular ways to remain in power, with the fear that the political leaders who put them there could cause some sort of problem or controversy (even if they lack the direct authority to remove the judge from power) that would harm the judge’s position. This has been cited as a reason why certain cases have turned out pro-business over community interests (like cases involving real-estate development where communities were essentially kicked out of their land). The gratitude problem also exists, and has been cited as a reason why it is impossible to bring cases against politically-connected people like sons of parliamentary leaders, because judges, who are appointed largely to support from local politicians, simply dismiss those cases.