Judicial campaigns and elections

  • April 5, 2013

    by E. Sebastian Arduengo

    Leave it to The Wall Street Journal’s editorial board to attack what may be the most rational approach in this country for selecting judges in favor of an approach that leaves the judiciary vulnerable to the same kind of unspoken quid pro quo influence that plagues the political branches of government.

    Missouri has long had one of the one of the best non-partisan judicial appointment plans in the country. Under the plan, which has since been adopted at least partially by 34 states, a non-partisan commission (usually with close ties to the state bar) reviews candidates for a judicial vacancy, and produces a list of people from which the governor can make an appointment. If the governor doesn’t make an appointment, the selection committee can put a judge on the bench itself. The only popular “check” on the process is a retention election that is typically held once the judge has completed one year of service.

    The main criticism of this method of selecting judges is that it gives state bar associations, and plaintiff’s lawyers in particular, too much power in the nominations process, while voters effectively have no input on the people who will take the bench. This argument has been the clarion call of the Journal, and it was brought up again in this recent editorial, with the outrageous claim that Pennsylvania’s recent moves to become the latest state to adopt the Missouri Plan amounted to “the political class … using a political scandal to grab more power.”

    Predictably, the Journal glossed over the nature of the scandal prompting Pennsylvania to consider switching from its current system of elections for judges – one of the biggest in the state’s history. It resulted in the resignation of state Supreme Court Justice Joan Orie Melvin, after she was found guilty of using state employees to run her reelection campaign. One of her sisters, a former state Senator, is already serving prison time after pleading guilty to using state employees to work on her own and Melvin’s campaigns, then forging documents to cover it up.

  • June 1, 2012
    Guest Post

    By Michigan Supreme Court Justice Marilyn Kelly and retired Sixth Circuit Judge James L. Ryan. Justice Kelly will participate in a panel on judicial campaigns and public confidence in the courts during the American Constitution Society’s National Convention in June.


    Since the turn of the century, Michigan has gained a reputation for Supreme Court election campaigns that are among the most expensive, least transparent and most partisan in the country. Our campaign ads have been among the most offensive. That is why we convened a bipartisan task force of prominent Michiganders to study how Supreme Court justices are selected across the nation and recommended improvements to Michigan’s Supreme Court selection process.

    The 2010 candidates for the Michigan Supreme Court raised a total of $2.6 million. The political parties and state-based interest groups reported spending another $2.5 million. But data collected from the public files of state television broadcasters and cable systems showed that an additional $6.3 million was spent by the political parties and interest groups. Michigan law does not require this candidate-focused “issue” advertising to be reported in the state campaign finance disclosure system.

    This was not the first time that the majority of money spent in a Michigan Supreme Court campaign was undisclosed to the public. For the elections from 2000 through 2010, $21.5 million was reported and $20.8 million was paid for undisclosed television advertising.

  • June 1, 2011

    Have you ever thought about becoming a judge? Even most lawyers and law students don’t know much about how to approach the process, the National Asian Pacific American Bar Association’s Tina Matsuoka pointed out during an event on the topic yesterday.

    ACS and seven other legal groups have launched a publication, “The Path to the Federal Bench,” intended to help demystify the process and encourage people from diverse backgrounds to pursue federal judgeships. The booklet includes tips on everything from assessing your candidacy to navigating the increasingly difficult nomination and confirmation process, and features the stories of several judges.

    This coalition of groups has already held a number of panel discussions around the country about the process of pursuing judgeships, and video of some of those events, as well as a short one-on-one interview with U.S. Court of Appeals for the Fourth Circuit Judge Andre M. Davis, is available at a new ACS web page focused on the path to the bench.

    “There’s been a very poor job of reaching out to people at the beginning of their careers,” ACS Executive Director Caroline Fredrickson explained during a press briefing yesterday, expressing hope that this effort will add much-needed diversity to our courts.

    The groups releasing this publication include ACS, the Hispanic National Bar Association, Justice at Stake, the National Asian Pacific American Bar Association, the National Association of Women Judges, the National Bar Association, the National Congress of American Indians and the National LGBT Bar Association.

    Read the new publication here, and learn more about the process of becoming a judge here. To learn more about now-pending judicial nominations and the judicial vacancy crisis on our federal courts, visit JudicialNominations.org.

  • April 18, 2011

    In light of increasingly “ugly” and “expensive” judicial elections such as the recent Wisconsin Supreme Court justice race, states should be permitted to impose more limits on judicial campaign spending than they do on other types elections, write University of California, Irvine law school dean Erwin Chemerinsky and Hofstra law professor James J. Sample in The New York Times.

    “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,” the op-ed explains.

    Chemerinsky and Sample urge advocates for abolishing judicial elections to “come to terms” with the reality that “judicial elections are here to stay,” and instead focus their energy on “incremental changes” that will reduce the influence of money on judges. (A New York Times editorial published last week urged the use of a merit panel rather than election to select Wisconsin’s judges.)

    They explain that while states are permitted to impose limits on direct contributions by persons to candidates, states are not permitted to set restrictions on outside spending. Such indirect spending to candidates is ever-increasing: In 2008 for the first time, spending by non-candidate groups nationally exceeded spending by candidates on the ballot.

    “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,” they write. “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.”

    Read the full article here. For more on judicial selection, see an ACSblog video interview with Justice at Stake Executive Director Bert Brandenburg on Caperton v. Massey, a 2009 Supreme Court decision on judicial conflict of interest referenced in the op-ed.

  • January 25, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC. The author, Elizabeth B. Wydra, is chief counsel for the Constitutional Accountability Center. CAC filed an amicus brief in Citizens United with the League of Women Voters.
    It has been just over a year since a 5-4 majority of the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations have a constitutional right to spend unlimited amounts of money from their general treasuries to influence our Nation's elections. With President Obama scheduled to give his State of the Union address tonight, it is also, of course, one year since the President spoke out against the Citizens United decision (and in return got the infamous headshake from Justice Samuel Alito).

    The American people were with Obama last year, and it appears that, a year later, the American people still agree with the President's denunciation of Citizens United. According to a new poll, "[f]ully 79% of voters support passage of a Constitutional amendment to overturn the Supreme Court's decision in the Citizens United case and make clear that corporations do not have the same rights as people." The problem of corporate money in the political system was made far worse by Citizens United, to be sure, and "We the People" might indeed need to amend the Constitution to right the wrongs wrought by the Supreme Court's decision. But the fundamental problem of Citizens United - the idea that artificial corporate entities enjoy the same constitutional rights that living, breathing human beings do - doesn't come from a defect in the Constitution that requires a correction. It stems instead from the Court's conservative majority's fundamentally flawed view of the Constitution and corporate personhood.

    As detailed in a Constitutional Accountability Center report entitled "A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law," Citizens United and its view of corporate rights cannot be squared with the Constitution's text and history or with Court precedent.