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“Electing Judges Is Insane”: Justice Judith French, ‘Forget All Those Other Votes If You Don’t Keep The Ohio Supreme Court Conservative’

With a couple of minor exceptions, like a few local judgeships in Switzerland, the United States is the only country where judges are elected. Indeed, to the rest of the world, the idea of judges running for office—begging for money, airing attack ads against their opponents, thinking always about their next election even after they take the bench—is positively insane. And they’re right.

We’ve had elected judgeships for our entire history, but until the last few years, those elections were nothing like races for Congress or governorships. But those days are past—now not only are judges acting like politicians, outside groups (yes, including the Koch brothers) are pouring money into judicial races to produce courts more to their liking. And when you make judicial elections more partisan, you get more partisan judges, like one Judith French, a member of the Ohio Supreme Court who is running to retain her seat:

At a Saturday event at which she introduced Republican Gov. John Kasich, French said, “I am a Republican and you should vote for me. You’re going to hear from your elected officials, and I see a lot of them in the crowd.

“Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast.

“Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it’s lawful. We decide what it means, and we decide how to implement it in a given case.

“So, forget all those other votes if you don’t keep the Ohio Supreme Court conservative,” French said.

Well, at least she’s being forthright, not bothering with “I’ll rule according to the Constitution” and “It’s not my job to make the laws” and “I just call balls and strikes” and all the other baloney that Republican judges offer up when asked about their judicial philosophy. “I am a Republican and you should vote for me.” That pretty much sums it up. What a terrific system.

 

By: Paul Waldman, Contributing Editor, The American Prospect, October 31, 2014

November 2, 2014 Posted by | Judicial Activism, Judiciary | , , , , , , | Leave a comment

“For Sale -Going Fast”: An Independent Judiciary — Buy A Judge Today

According to the New York Times the retention election of three Tennessee judges “has been preceded by an expensive and acrimonious campaign bolstered by organizations like Americans for Prosperity, which receives financial support from the billionaires Charles G. and David Koch and other conservative groups”. Those supporting retention of the judges have been compelled to raise “more than $1 million” to combat the effort to defeat them. Could there be anything more unseemly or contrary to the purposes for which the judiciary was established?

I do not doubt that there are persons out there (and even corporations now) who contribute to judicial campaigns for the purpose of electing or retaining judges who are fair, competent and impartial and who will carry out the applicable laws and enforce the state and federal constitutions. Then there are the other 99 percent who wish to influence particular matters or judicial philosophy in general. Judges are not and were never intended to be elected representatives. I cringe at the constant contention that judges should be held “accountable”. They are accountable to the laws and the Constitution. They should not be subject to the whim of those who find certain past rulings objectionable or seek to influence future ones by buying elections. Nothing could weaken the independence of the judiciary more than having judges removed or not re-elected because of prior decisions that they have made.

The whole concept of judicial independence is that judges should feel to rule as they deem correct without fear of retaliation. Nor should judges undertake the position with some feeling that they are indebted to those who have financed their election. Per the Times: “The Republican State Leadership Committee, a national group, plans to spend at least $5 million on judicial races this year.” Why? Because they want to influence future judicial decisions.

Let’s face it — this movement is exclusively a conservative one. Conservatives own it. Judges are to be ousted for “liberal” rulings like upholding same-sex marriage, ordering new trials in death penalty cases or generally ruling in favor of persons charged with crimes — stuff like upholding the Constitution. Judicial elections are degrading. Voters do not know whether or not the candidates are qualified. And finally money has further corrupted the process. I have said on prior occasions: Can you imagine a lawyer or a litigant walking up to a judge in the middle of a trial and handing the judge a check for his or her campaign? Would it make any difference if the check was delivered a week before? And isn’t it even worse now that the big boys are coming in with even bigger checks?

We should end judicial elections entirely, but until we do, we must find a way to limit the corrupting influence of money in the election process and stop putting the judiciary up for sale.

 

By: Judge H. Lee Sarokin, The Huffington Post Blog, August 7, 2014

August 8, 2014 Posted by | Judges, Judiciary | , , , , , | Leave a comment

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

April 18, 2011 Posted by | Campaign Financing, Constitution, Corporations, Democracy, Elections, Lawmakers, Politics, States, Unions, Voters | , , , , , , , , , , , , , | Leave a comment

   

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