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
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
Mitt! Mitt! Mitt!: It’s A Bad Sign When One Of Your Errors Is Your Book Title
This was the week we’ve been waiting for! Decades into the future, you will be able to tell your grandchildren where you were when Mitt Romney announced that he had formed a presidential exploratory committee.
Who knew he needed to explore? He said he was running on his Christmas card, for Lord’s sake.
My job today is to give you a run-through of every book Mitt Romney has ever written. Fortunately, there are only two: “Turnaround,” which is about his stint as the leader of the troubled 2002 Salt Lake City Olympic Games, and “No Apology,” his campaign tome, which used to be subtitled “The Case for American Greatness” but is now “Believe in America.”
Perhaps three. When the new paperback edition of “No Apology” came out in February, early readers noted that not only had Romney added a new subtitle but also a new preface, ranting about the founders-hating big spenders who are now running the country. And, most notably, he had also changed some critical chunks of the original to make the text more Tea Party-friendly.
For instance, paperback Romney has now noticed that the Massachusetts health insurance law that he championed as governor does have some flaws, all of which are because of anti-freedom provisions that the Democrats in the State Legislature put in. Also, the stimulus was way, way worse than he originally thought.
We all know that Mitt has a habit of, um, mutating to the political winds. So even in its earlier incarnation, the book had a decidedly uneven tone. “Despite my affiliation with the Republican Party, I don’t think of myself as highly partisan,” Moderate Mitt wrote toward the end. This comes after 300 pages of unrelenting attacks on Barack Obama and every member of his party since Andrew Jackson. He blames Bill Clinton for everything from cutting military spending to presiding over an administration during which “birth to teenage mothers rose to their highest level in decades.” I’m sure this week’s Romney does not regard that as a partisan statement even though teenage birth rates actually fell spectacularly during that exact period.
The book is heavy into policy and rather sparse on personal history, except for the parts that relate to his dad being a successful businessman and Mitt himself being an entrepreneurial hero along the deal-making, business-closing, job-slashing private equity line. Romney’s earlier book, “Turnaround,” had some great stories about his Mormon ancestors, including a great-grandmother who single-handedly drove her children to Mexico in a covered wagon during the Indian wars. “At one point along the way, she came across freshly slaughtered U.S. Cavalry horses. She paused only long enough to pry the shoes from the wasted horses, re-shod her own wagon horses, and journey on,” he wrote. Truly, “No Apology” could use a whole lot more of Hannah Romney and a whole lot less about the causes of the decline of the Ottoman Empire.
Also, there is not a single mention in “No Apology” of the fact that Romney once drove to Canada with the family Irish setter strapped to the roof of the car. I regard this as a critical oversight, although perhaps it was Seamus that Romney was thinking of when he chose his title.
But, according to the book, “No Apology” refers to Romney’s objections to President Obama’s alleged habit of going around the world, asking other countries to forgive America for its faults. This Obama apologizing tour is an article of Tea Party faith, but one that PolitiFact analyzed a while back and found it to be false. (“Yes, there is criticism in some of his speeches, but it’s typically leavened by praise for the United States and its ideals.”)
Anybody can make a mistake, but it’s a bad sign when one of your errors is your title.
Of all the awful books by presidential candidates I have read this year, “No Apology” was the hardest to get through. To be fair, Romney does write a lot about the issues, but in a way that makes you feel as if you’re trapped at a school assembly where a long-winded donor is telling you what life is all about. (“If I may return to my engine analogy from earlier in this chapter: Our economy is powered by two pistons …”)
“Turnaround” is a much easier book to read, even though it requires a pretty keen interest in how the Salt Lake City Olympics planners saved the day after Mitt took over in 1999. I was particularly fascinated by Romney’s insistent contention that he is a fun guy. (“I love jokes, and I love laughing.”) There is not much evidence of actual humor, although Romney says that when he visited the Clinton White House, he prankishly protested being given a visitor’s badge that had a red A on it, saying, “I’m not the one that cheated on my wife.”
Maybe you had to be there.
By: Gail Collins, Op-Ed Columnist, The New York Times, April 15, 2011
A Vision Of Optimism And Equal Opportunity: What It Means To Be A Democrat
I’m glad I waited for President Obama’s heralded budget speech Wednesday before criticizing it (such a novel idea); there was much to praise in it and little to challenge. The best news: Obama laid out the kind of sweeping “story” of American democracy, and the bold vision of how we grow together, that I thought was too much to ask for even yesterday. He even talked about the scariest fact of American inequality: The dangerous hold the top 1 percent of Americans has on wealth, income and (he didn’t say this) politics. He pushed back on the cruel GOP deficit plan, made his toughest case yet for tax hikes on the richest, and stayed away from the worst ideas floated by his own deficit commission. The devil will be in the deficit-cutting details, and frankly, there weren’t a whole lot of them in the speech. But the president came out fighting with firmness, and with a rhetoric of social justice and equality, that I haven’t seen enough of these last two years.
Obama acknowledged our American history as “rugged individualists, a self-reliant people with a healthy skepticism of too much government.” But he quickly identified “another thread running throughout our history”:
A belief that we are all connected; and that there are some things we can only do together, as a nation. We believe, in the words of our first Republican president, Abraham Lincoln, that through government, we should do together what we cannot do as well for ourselves. And so we’ve built a strong military to keep us secure, and public schools and universities to educate our citizens. We’ve laid down railroads and highways to facilitate travel and commerce. We’ve supported the work of scientists and researchers whose discoveries have saved lives, unleashed repeated technological revolutions, and led to countless new jobs and entire industries. Each of us has benefited from these investments, and we are a more prosperous country as a result.
Part of this American belief that we are all connected also expresses itself in a conviction that each one of us deserves some basic measure of security. We recognize that no matter how responsibly we live our lives, hard times or bad luck, a crippling illness or a layoff, may strike any one of us. “There but for the grace of God go I,” we say to ourselves, and so we contribute to programs like Medicare and Social Security, which guarantee us health care and a measure of basic income after a lifetime of hard work; unemployment insurance, which protects us against unexpected job loss; and Medicaid, which provides care for millions of seniors in nursing homes, poor children, and those with disabilities. We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.
So far, so good. It got even better when Obama took direct aim at Paul Ryan’s cruel and ludicrous budget plan. He laid out its many cuts, and concluded:
These are the kind of cuts that tell us we can’t afford the America we believe in. And they paint a vision of our future that’s deeply pessimistic. It’s a vision that says if our roads crumble and our bridges collapse, we can’t afford to fix them. If there are bright young Americans who have the drive and the will but not the money to go to college, we can’t afford to send them. Go to China and you’ll see businesses opening research labs and solar facilities. South Korean children are outpacing our kids in math and science. Brazil is investing billions in new infrastructure and can run half their cars not on high-priced gasoline, but biofuels. And yet, we are presented with a vision that says the United States of America – the greatest nation on Earth – can’t afford any of this.
Then he attacked the Gilded Age social inequality and tax cuts that have helped create our troubles:
Think about it. In the last decade, the average income of the bottom 90% of all working Americans actually declined. The top 1% saw their income rise by an average of more than a quarter of a million dollars each. And that’s who needs to pay less taxes? They want to give people like me a two hundred thousand dollar tax cut that’s paid for by asking thirty three seniors to each pay six thousand dollars more in health costs? That’s not right, and it’s not going to happen as long as I’m President.
Indulge me here, because this is how Democrats should be talking, and rarely do:
The America I know is generous and compassionate; a land of opportunity and optimism. We take responsibility for ourselves and each other; for the country we want and the future we share. We are the nation that built a railroad across a continent and brought light to communities shrouded in darkness. We sent a generation to college on the GI bill and saved millions of seniors from poverty with Social Security and Medicare. We have led the world in scientific research and technological breakthroughs that have transformed millions of lives.
This is who we are. This is the America I know. We don’t have to choose between a future of spiraling debt and one where we forfeit investments in our people and our country. To meet our fiscal challenge, we will need to make reforms. We will all need to make sacrifices. But we do not have to sacrifice the America we believe in. And as long as I’m President, we won’t.
That’s the president I voted for.
On the meat of the president’s plan to cut the deficit: He deserves credit for rejecting Medicare vouchers, for turning aside specific talk about Social Security (even though it has nothing to do with the federal deficit, the privatizers and Obama’s friends on his deficit commission wanted it thrown on the table in a grand bargain that can only be bad news for Democrats and working people; Obama seemed not to be willing to do that); for promising that reforms and innovations already part of the Affordable Care Act will bring down the costs of Medicare and Medicaid; and for saying we need bigger defense cuts than so far proposed.
(Small point: I liked the way Obama trashed Ryan without mentioning him — you don’t fight down — but I wish he’d been a tiny bit more confrontational on exactly what Ryan’s “Medicare vouchers” would do; if seniors could afford insurance at all, which is debatable, they’d certainly be at the mercy of privatized “death panels” refusing care over its costs. I say that because I’m sure some GOP prevaricator will bring back the “death panel” lie now that Obama has committed to curbing costs in Medicare. I hope I’m wrong.)
My quibbles? I’m still concerned that Obama has agreed to freeze the 12 percent of the budget that goes to “discretionary spending.” And I’m assuming that freeze includes the cuts made this week. I don’t like his promise of $3 in spending cuts for every dollar raised in revenue via tax hikes. In a statement, AFL-CIO president Richard Trumka praised the speech but added: “President Obama does not yet have the balance right between spending cuts and new revenue.” I also never like it when Obama undermines himself by saying things like:
I don’t expect the details in any final agreement to look exactly like the approach I laid out today. I’m eager to hear other ideas from all ends of the political spectrum.
I know, I know, he thinks it makes him sound reasonable to independents; I worry he sounds weak to Republicans. If Obama thinks the plan he laid out is as far to the left as Ryan’s plan is to the right, and that the answer is to meet in the glorious middle, we’re all in trouble.
But for today, I’ll take him at his word. After the speech, pundits called it the opening salvo of the Obama 2012 reelection campaign, as though there was something wrong with that. If these are the founding principles of the president’s 2012 campaign, Democrats and the country will be better off than we’ve been in a while.
By: Joan Walsh, Editor at Large, Salon, April 13, 2011
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