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“Be Careful What You Wish For”: Dear Ted Cruz; Electing SCOTUS Judges Might Not Work Out As Well For You As You Hope

Flailing about for some sort of cogent conservative reaction to the Supreme Court decisions this week, National Review apparently allowed Ted Cruz to scribble out some meandering prose on its website. That may have been a mistake.

Ted Cruz’ solution to “judicial tyranny”? Direct election of SCOTUS judges. No, really. But let’s set aside the obvious fever dream futility of attempting to make this alteration to the Constitution to serve social conservative interests and take his suggestion at face value.

Direct election of judges has admittedly been a key page out of the conservative playbook for a long time now. Big money in theory keeps justices aligned to corporate interests, while conservative interest groups can ensure that judges fear to render verdicts against their pet issues from guns to gay marriage. As public policy, of course, this is a terrible idea: the entire point of having unelected judges is that they will feel free to protect the Constitution and the rule of law against the unjust tyranny of the majority. Making judges fearful of the public whim negates much of the entire purpose of having a judicial branch to check the legislative.

But even from a purely conservative utilitarian standpoint, that strategy tends to work best in more conservative states and where judges are elected in non-presidential cycles. Also, much has changed in the last decade in terms of popular opinion.

The underpinning of Cruz’ argument seems to be that the justices of the Court have instituted unpopular judicial tyranny on the public by upholding Obamacare and gay marriage. But it’s not at all clear that if Supreme Court judges were elected by popular vote, the results would favor conservative interests. The same demographic forces that make it increasingly difficult for Republicans to win presidential elections would carry similar headwinds against conservative justices. A nation that elected Barack Obama twice would be far likelier to toss out Scalia than Ginsburg.

Moreover, there’s no evidence that a serious public opinion backlash will arise against the Court over marriage equality and the Affordable Care Act, let alone one strong enough to engender a serious recall election threat under such a system. National public opinion has shifted dramatically in favor of marriage equality, and Americans strongly oppose repealing the Affordable Care Act. If Ted Cruz believes a populist backlash would scare the Supreme Court into submission, he’s obviously looking at the wrong polls.

Indeed, by far the most unpopular of the SCOTUS’ recent decisions was its stand on Citizens United: a full 80% of Americans opposed to the decision, and 65% of Americans strongly opposed. The public backlash over giving plutocrats and corporations unfettered purchasing power over our elections has been far stronger than any old-school conservative revanchist revolt against liberal judges.

All of which is to say, Ted Cruz should probably be careful what he wishes for.

 

By: David Atkins, Political Animal Blog, The Washington Monthly, June 27, 2015

June 29, 2015 Posted by | Judicial Elections, SCOTUS, Ted Cruz | , , , , , , | 2 Comments

“Retention Voting System”: A Judicial Election Threatened North Carolina Republicans’ Agenda. So They Canceled The Election

Until recently, North Carolina Republicans had a problem. Some of their biggest legislative achievements of the past few years, including a restrictive voter ID law and weakened environmental regulations, were heading for review before the state Supreme Court. Right now, conservative justices hold a tenuous 4-3 majority on that court. But one of the conservative justices was up for re-election in 2016—before several of these matters would reach the court—and he was not guaranteed to win. This meant the Republicans’ policy agenda was at risk.

So the Republican-controlled state legislature decided to change the rules of the game. On a party-line vote, the state Senate and House this month passed a bill that does away with that justice’s upcoming election and effectively ensures that conservative justices will retain their majority on the state’s highest court for years to come. Last week, Republican Gov. Pat McCrory signed the measure into law.

Justices in North Carolina face re-election every eight years. Under the new law, after winning his or her first election, a state Supreme Court justice can now opt for an up-or-down retention vote without facing a challenger. In other states with retention votes, justices rarely lose. With this new measure, if a North Carolina justice fails to reach 50 percent in the retention vote, the governor will appoint a replacement for a two-year term before an open election is held to fill the seat.

So Justice Robert Edmunds Jr., the conservative justice whose term runs out next year, can now opt for a retention vote and not worry about an opponent. If he comes up short, McCrory will appoint a two-year replacement, presumably another conservative who is sympathetic to the GOP laws recently implemented.

Democrats in the state called the new law an “obvious” attempt to help one justice keep his seat. Republicans claim they merely want to help stanch the increasing flow of money into judicial elections—a nationwide trend that has many advocates worried about the impartiality of state judges. People are tired “of seeing millions of dollars spent electing a member of the Supreme Court or the Court of Appeals,” one of the bill’s Republican sponsors told the Raleigh-based News & Observer.

But Republicans actually helped open the door to more money in judicial elections that they now say they want to close. In 2013, GOP state legislators repealed a public financing system that Democrats had put in place for state Supreme Court and appellate court candidates. Under the public financing system, judicial candidates didn’t have to appeal to donors who might have an interest in the outcome of cases, though this didn’t inoculate judicial elections from the nationwide spike in outside spending that followed the Supreme Court’s Citizens United decision.

“The same Republican majority that repealed judicial public financing in 2013 is unhappy with the election in 2014 [in which three Democrats won Supreme Court races] and then turns around and rigs judicial races in North Carolina under the guise that they are trying to get rid of big money in judicial elections,” says Melissa Price Kromm, director of the North Carolina Voters for Clean Elections Coalition, a group that advocates public financing in state elections. “It is a partisan, political power grab.”

The Republican move to end public financing and implement the new retention-vote system is “a disturbing trend,” says Bob Phillips, the executive director of the North Carolina chapter of Common Cause, a nonpartisan good-government group. “We don’t want to see the highest court in our state gamed by whatever party holds power in the legislature.”

There’s no indication this new system will keep money out of North Carolina’s judicial elections, says Billy Corriher, an expert in money in state courts at the left-leaning Center for American Progress. “In other states where this kind of system is used, judges still have to raise a ton of campaign cash,” he says.

North Carolina isn’t the first state where Republicans have sought to protect their agenda by making changes to the state’s top court. In Kansas, where the state Supreme Court could upset a series of draconian tax cuts championed by Republican Gov. Sam Brownback, conservative lawmakers have put forward a number of proposals that would effectively pack the state Supreme Court with sympathetic conservative justices. As part of this ongoing power struggle, Republicans made funding for the entire court system contingent on a favorable ruling from the courts on a law passed last year that weakened the state Supreme Court’s authority.

The next few years will be busy ones for North Carolina’s Supreme Court. In April, the US Supreme Court threw out a ruling by North Carolina’s top court upholding Republican-drawn congressional and state legislative districts, ordering the state Supreme Court to re-examine the case with special consideration for whether Republicans relied too heavily on race in drawing the new maps. Civil rights groups had challenged the maps on the grounds that they deliberately diluted the African American vote in the state.

In 2010, Republicans took control of North Carolina’s legislature for the first time since Reconstruction. In 2012, they won the governorship, too, and set about to reform just about every area of public policy. They slashed tax rates, cut teacher pay, gutted environmental regulations, restricted abortion access, weakened gun safety laws, and even passed an anti-Shariah law for good measure. Challenges to some of their initiatives—rules easing fracking restrictions, a highly restrictive voter ID law, the redrawn district map, and a school voucher program—are working their way through state courts. Ultimately, the state’s top court—now with a guaranteed GOP-friendly majority for the next three years—could have the final say on these controversial measures.

 

By: Pema Levy, Bill Moyers Blog, Moyers and Company, June 18, 2015

 

 

 

June 21, 2015 Posted by | Judicial Elections, North Carolina Legislature, Pat McCrory | , , , , , , | 1 Comment

“Justice For Sale”: Soliciting Campaign Cash Threatens The Integrity Of The Courts

Thirty-nine states use elections to select judges, and all of them have rules governing how judicial candidates can conduct their campaigns. This term, the Supreme Court is expected to rule on a case, Williams-Yulee v. Florida Bar, which could substantially limit states’ ability to use such rules to protect the integrity of our courts – and lead to the greater politicization of judicial elections.

At issue in Williams-Yulee is a Florida rule that prohibits judicial candidates from personally requesting campaign contributions. Instead, a separate campaign committee must solicit and collect funds. Thirty states ban at least some forms of personal solicitation by judicial candidates, and 22 states, including Florida, have broad prohibitions.

There is good reason that most states restrict personal fundraising by judges. Lawyers and potential litigants are the most common donors to judicial campaigns. A personal request for contributions by the very judge or judicial candidate who may be deciding your case is not only coercive but raises concerns that justice could be for sale.

This is not an abstract worry. According to four former chief justices from Texas and Alabama — two states that permit personal solicitation — “our experience confirms there is a real risk that solicitation can morph into a demand.” In an amicus brief, the retired justices cited an incident in which a judge sent a personal email to a local lawyer soon after being elected, stating, “I trust that you will see your way clear to contribute to my campaign account in an amount reflective of the $2000 contribution you made towards my defeat.” The email further noted that “in very few realms does tardiness not incur an up-charge.”

In another incident, a judge emailed a small group of partners at a prominent law firm, detailing contributions made by other firms and noting that “all the Top 10 firms are committed to maxing out as a firm: $30,000 total.” The judge requested this firm “do the same,” explaining that “[a]t most of the firms, they are designating a senior partner … to bundle dozens of relatively small-$ contributions … until they reach the target,” and promising, “Bottomless thanks!”

These kinds of interactions threaten the public’s confidence in the basic fairness of our courts. The threat is particularly severe now, as judicial campaign spending has skyrocketed in recent years. Between 2000 and 2009, contributions in state supreme court races more than doubled as compared to the previous decade. Indeed, according to one recent poll, 95 percent of Americans believe that campaign contributions impact judicial decisions.

Regardless of how the Supreme Court rules – but particularly if it strikes down Florida’s direct solicitation ban – states must take steps to insulate judges from the growing flood of money in judicial elections. States should adopt strict recusal rules that bar judges from hearing cases when lawyers and litigants spend substantial sums to get them elected. Public financing of judicial elections is another vital reform, enabling judges to run competitive campaigns without the burdens of fundraising.  These commonsense measures would help ensure public confidence in the integrity of our courts.

 

By: Alicia Bannon, Counsel in the Brennan Center’s Democracy Program; Moyers and Company, February 22, 2015

February 23, 2015 Posted by | Campaign Financing, Judicial Elections, Judicial System | , , , , | Leave a comment

   

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