Monday, August 16, 2010

The New Politics of Judicial Elections

The Brennan Center today released the fifth edition of The New Politics of Judicial Elections, covering the corrosive effects of campaigning on state judiciaries between 2000 and 2009.  From the Executive Summary:

By tallying the numbers and "connecting the dots" among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation's courts.  These trends include:

  • The explosion in judicial campaign spending, much of it poured in by "super spender" organizations seeking to sway the courts;
  • The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;
  • The emergence of secretive state and national campaigns to tilt state Supreme Court elections;
  • Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;
  • Growing public concern about the threat to fair and impartial justice--and support for meaningful reforms.

The report also covers reform efforts, including public financing, tough recusal rules, campaign disclosure laws, and appointments based on qualifications with retention elections. 

The Supreme Court's recent cases don't do much to support reform.  The Court ruled earlier this summer in Caperton v. Massey Coal that due process required a state supreme court justice to recuse himself from an appeal involving a litigant who spent $3 million supporting his campaign for a seat on the court--more than 60% of the total spent to support his campaign.  But the sharply divided 5-4 Court emphasized that the facts were "extreme by any measure," likely limiting the due process ruling to similarly extreme cases.  (Our most recent post on the case is here.)

And the Court ruled last January in Citizens United v. FEC that the First Amendment prohibited restrictions on electioneering communications by corporations and labor unions.  The case means that restrictions on corporate and union spending in judicial elections are also likely to be overturned.  (Our most recent post on the case is here.)

Retired Justice Sandra Day O'Connor warned in the Introduction of the consequences of inaction:

We all have a stake in ensuring that courts remain fair, impartial, and independent.  If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.


Campaign Finance, Elections and Voting, First Amendment, News, Scholarship, Speech, Supreme Court (US) | Permalink

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