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.