Judicial Elections: You Get The Judges You Pay For
Legal elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.
An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench.
In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”
The need to run multimillion-dollar campaigns to win election to the court in much of the country renders the crocodile ever more menacing.
For more than a quarter of a century, voters have rejected efforts to move from an elective to an appointive bench. Last year, despite a campaign led by Sandra Day O’Connor, Nevada voters became the latest to reject such a change.
Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford. Instead they should focus on incremental changes to what Justice O’Connor bluntly calls the “wrong” of “cash in the courtroom.”
More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.
But this is only part of the financial story. Nationally, in 2008, for the first time, noncandidate groups outspent the candidates on the ballot.
Perhaps most tellingly, a study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races. The top five spenders in each of the elections laid out an average of $473,000.
In 2009, the United States Supreme Court dealt with this issue, holding that due process is violated when a judge participates in a case involving a party that spent a great deal of money on the judge’s election effort. The case before the court involved a West Virginia Supreme Court decision overturning a jury verdict that awarded a $50 million judgment against Massey Coal Company.
One of the justices in the majority of that 3 to 2 decision, Brent D. Benjamin, had been elected after Massey Coal’s chief executive spent $3 million on his campaign. The United States Supreme Court held, 5 to 4, that due process was violated because of the lack of an impartial decision-maker. The court made clear, however, that campaign spending requires the disqualification of a judge only rarely.
A year later, the high court held, in the Citizens United case, that corporations and unions have the First Amendment right to spend unlimited amounts of money in election campaigns. In light of these two decisions, corporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.
Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.
That solution has long been assumed to be off the table, though, because the Supreme Court ruled in 1976 that while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected. Nevertheless, large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice.
The Supreme Court’s 2009 decision properly focused on the $3 million in campaign expenditures, not the $1,000 that was directly contributed. In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging.
Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.
States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.
By: Erwin Chemerinsky and James J. Sample, The New York Times, April 17, 2011
No More Civility: Bipartisanship In “Republican-Speak” Is Code For Tax Cuts For The Wealthy
Last week, President Obama offered a spirited defense of his party’s values — in effect, of the legacy of the New Deal and the Great Society. Immediately thereafter, as always happens when Democrats take a stand, the civility police came out in force. The president, we were told, was being too partisan; he needs to treat his opponents with respect; he should have lunch with them, and work out a consensus.
That’s a bad idea. Equally important, it’s an undemocratic idea.
Let’s review the story so far.
Two weeks ago, House Republicans released their big budget proposal, selling it to credulous pundits as a statement of necessity, not ideology — a document telling America What Must Be Done.
But it was, in fact, a deeply partisan document, which you might have guessed from the opening sentence: “Where the president has failed, House Republicans will lead.” It hyped the danger of deficits, yet even on its own (not at all credible) accounting, spending cuts were used mainly to pay for tax cuts rather than deficit reduction. The transparent and obvious goal was to use deficit fears to impose a vision of small government and low taxes, especially on the wealthy.
So the House budget proposal revealed a yawning gap between the two parties’ priorities. And it revealed a deep difference in views about how the world works.
When the proposal was released, it was praised as a “wonk-approved” plan that had been run by the experts. But the “experts” in question, it turned out, were at the Heritage Foundation, and few people outside the hard right found their conclusions credible. In the words of the consulting firm Macroeconomic Advisers — which makes its living telling businesses what they need to know, not telling politicians what they want to hear — the Heritage analysis was “both flawed and contrived.” Basically, Heritage went all in on the much-refuted claim that cutting taxes on the wealthy produces miraculous economic results, including a surge in revenue that actually reduces the deficit.
By the way, Heritage is always like this. Whenever there’s something the G.O.P. doesn’t like — say, environmental protection — Heritage can be counted on to produce a report, based on no economic model anyone else recognizes, claiming that this policy would cause huge job losses. Correspondingly, whenever there’s something Republicans want, like tax cuts for the wealthy or for corporations, Heritage can be counted on to claim that this policy would yield immense economic benefits.
The point is that the two parties don’t just live in different moral universes, they also live in different intellectual universes, with Republicans in particular having a stable of supposed experts who reliably endorse whatever they propose.
So when pundits call on the parties to sit down together and talk, the obvious question is, what are they supposed to talk about? Where’s the common ground?
Eventually, of course, America must choose between these differing visions. And we have a way of doing that. It’s called democracy.
Now, Republicans claim that last year’s midterms gave them a mandate for the vision embodied in their budget. But last year the G.O.P. ran against what it called the “massive Medicare cuts” contained in the health reform law. How, then, can the election have provided a mandate for a plan that not only would preserve all of those cuts, but would go on, over time, to dismantle Medicare completely?
For what it’s worth, polls suggest that the public’s priorities are nothing like those embodied in the Republican budget. Large majorities support higher, not lower, taxes on the wealthy. Large majorities — including a majority of Republicans — also oppose major changes to Medicare. Of course, the poll that matters is the one on Election Day. But that’s all the more reason to make the 2012 election a clear choice between visions.
Which brings me to those calls for a bipartisan solution. Sorry to be cynical, but right now “bipartisan” is usually code for assembling some conservative Democrats and ultraconservative Republicans — all of them with close ties to the wealthy, and many who are wealthy themselves — and having them proclaim that low taxes on high incomes and drastic cuts in social insurance are the only possible solution.
This would be a corrupt, undemocratic way to make decisions about the shape of our society even if those involved really were wise men with a deep grasp of the issues. It’s much worse when many of those at the table are the sort of people who solicit and believe the kind of policy analyses that the Heritage Foundation supplies.
So let’s not be civil. Instead, let’s have a frank discussion of our differences. In particular, if Democrats believe that Republicans are talking cruel nonsense, they should say so — and take their case to the voters.
By: Paul Krugman, Op-Ed Columnist, The New York Times, April 17, 2011
Sarah Palin: You Becha, “I Am AFP”…”All For Profit”
Former half-term Gov. Sarah Palin (R) — remember her? — headlined a conservative rally in Madison yesterday, apparently hoping to generate support for Wisconsin Gov. Scott Walker’s (R) far-right agenda. More interesting than the message, though, was the turnout.
Attendees heard fairly predictable rhetoric. Palin, for example, insisted that Walker’s anti-union agenda is “not trying to hurt union members.” The Fox News personality also excoriated congressional Republicans for not being even more intransigent. The whole thing was organized by the Koch brother’s right-wing Americans for Prosperity, and Palin spoke behind a podium with a sign that read, “I am AFP.”
But who exactly heard all of this?
Away from the stage, the passionate arguments went right on, each side claiming the upper hand, the larger crowd, the right side of history. The police estimated a crowd — at its highest point — of about 6,500 people, though it was uncertain how many of those were Tea Party supporters and how many were there to protest. Either way, the figure was far smaller than the tens of thousands of demonstrators that had been reported around the Capitol on several days in recent months.
At the height of progressive protests in February and March, tens of thousands braved the elements to condemn the Walker agenda — and wouldn’t leave. Yesterday, Palin led a parade of odd right-wing figures, at an event paid for by powerful billionaires, and about 6,500 people showed up.
And of those 6,500, most of those in attendance were there to oppose Palin and her far-right allies, not support them.
It’s a reminder about the changing tide. When Tea Partiers organize a rally and bring one of their highest-profile stars to headline, but are nevertheless outnumbered at their own event, which suffered from poor attendance anyway, it’s not a good sign.
By: Steve Benen, Washington Monthly, Political Animal, April 16, 2011
Flirting With The Fringe: Stop Pretending Michele Bachmann Can Win The Iowa Caucuses
Ever since Michele Bachmann announced her intention to form a presidential exploratory committee, pundits, including Ed Kilgore at TNR, have been making the case that she has a good chance at winning Iowa—or if not winning, then doing well enough to hurt one or more of the stronger candidates. Republican caucus-goers in the state, they argue, are at least half-nuts, and therefore may well support Bachmann or some other candidate who doesn’t pass conventional standards of seriousness.
Certainly, Iowa Republicans are very socially conservative, more so than in some other states. But a closer look at Iowa caucus history shows that their history of supporting fringe candidates is not quite what it’s made out to be.
The case that “wacky Iowans will do anything” essentially comes down to interpreting a handful of episodes from recent decades. The first occurred in 1988 when Pat Robertson stunned everyone by finishing second with 25 percent of the vote, besting George H.W. Bush and Jack Kemp. But Pat Robertson was a social conservative—and no ordinary one at that—in a year in which the frontrunner (George H.W. Bush) was not. Moreover, that example is now over two decades old, and since then Iowa Republicans have had no trouble voting for mainstream candidates with conventional credentials, as long as those candidates—Lamar Alexander, George W. Bush—had solid records on social conservative issues.
That leaves us with three other supposed episodes of Iowan craziness: Pat Buchanan’s second place finish in 1996; the surprising showings of fringe candidates Alan Keyes and Gary Bauer in 2000; and Huckabee’s victory in 2008. Closer inspection of each of these episodes, however, reveals that none were quite as crazy as they appear.
Take Pat Buchannan in 1996. As odd as it might seem now, he was almost a serious candidate at the time: He had already run for president in 1992, and while he was never quite a plausible nominee, he did have some serious claim as a repeat candidate that Bachmann doesn’t have now. Nor was Buchannan’s success in Iowa especially unique. In fact, he proceeded to win the primary in New Hampshire, and wound up beating his Iowa percentage in sixteen states (several of those, to be sure, were after other candidates had dropped out, so the higher percentage was less impressive).
As for Alan Keyes and Gary Bauer in 2000, they certainly were fringe candidates—even more so than Bachmann—and their combined 25 percent was both impressive and anomalous; they combined for only 7 percent in New Hampshire, although Keyes did have some stronger showings in late states after the nomination was decided. However, it’s also the case that they didn’t have a whole lot of competition. John McCain campaigned in Iowa in 2000, but he did not fully commit to the state, and the only other candidate they beat was Orrin Hatch, who hardly ran any campaign at all. And even with their totals combined, Keyes and Bauer finished well back of Steve Forbes for second, and even further behind winner George W. Bush.
Finally, there’s Huckabee’s surprise victory in 2008; but the extent to which his candidacy was in any way similar to Bachmann’s has been vastly overstated. Yes, he won with the support of social issues voters. But Huckabee wasn’t some backbench member of the House; he was a recent former governor, and, in that sense, just as legitimate a candidate as Jimmy Carter or Bill Clinton.
Compared to Huckabee, Michele Bachmann is an altogether different sort of candidate. Since 1972, no candidate in any way similar has run a competitive campaign. The only three members of the House who had plausible shots at winning—Mo Udall in 1976, Jack Kemp in 1988, and Dick Gephardt in 1988 and 2004—were all senior members with leadership positions, legislative accomplishments, or both. No, Bachmann belongs in a different category, with other sideshow acts who may attract attention but have no real chance to win the nomination. And even in allegedly crazy Iowa, those candidates rarely impress on caucus day.
By: Jonathan Bernstein, The New Republic, April 16, 2011
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