In the best of times, judicial elections are a goofy exercise of Jacksonian populism. The concept of the popular vote fills the hearts of New Yorkers with pride, believing that they played some role in democracy. The truth, of course, is that pulling a lever, or detaching a chad as the case may be, is only a small part of democracy. The other, more difficult part is exercising the franchise intelligently.
When it comes to electing judges, and aside from the handful of friends and relatives of any particular candidate, the tendency is to vote party line since few voters have the slightest clue who these candidates are or why they should want to vote for them. A large part of the problem is the restriction on speech that deprives a judicial candidate of informing the electorate of what they would do with great power were theirs wield. Of course, the limits are imposed to avoid candidates for the bench committing to positions prior to cases or arguments coming before them. Judges really aren’t supposed to climb onto the bench with their minds already made up.
One of the most offensive aspects of judicial campaigns has been the need to go hat in hand for campaign donations, putting the arm on friends and lawyers likely to appear before them for some cash to appease the party leader. Running for judge is a pay to play opportunity, and no party leader will endorse a candidate who can’t pay for his own telephone pole signs, unlawful though they may be. Sitting judges running for re-election despise the need to ask for contributions. New candidates rarely have anybody to ask, and even fewer willing to cough up some hard support. It’s a nasty, demeaning business.
And along comes Citizen United. Regardless of how one feels about the rights of corporations to “speak their minds” via their pocketbooks, it’s a particular game changer when it comes to judicial elections. From Dorothy Samuels Editorial Notebook in the New York Times :
Thoughtful candidates known to look at the law on a case-by-case basis will be at a distinct disadvantage, forecasts Professor James Sample, a judicial elections expert at Hofstra Law School. The accelerated money war, he warns, will inevitably polarize the bench “because more moderate candidates are unlikely to be considered a bankable vote by any special interest group investing heavily in judicial campaigns.”
Judicial candidates have long use such amorphous language as “fair and just” in their campaign advertising, even though they regularly note their endorsements by a variety of police union groups (as if that’s not intended to send a message). The path to election just became far smoother. Consider the candidate who seeks the “endorsement” of the Strip Mall Builders Association of New York perhaps, and they’ll never have to bug their Uncle Joe for a dime again.
For the candidates who already own a robe, the easy path to avoiding the hat-in-hand route is to show your “value” to potential campaign contributors through your judicial philosophy, as evidenced by decisions. It’s just too easy, and too obvious, to build a special interest following that can now channel more than adequate funding into your campaign warchest.
This doesn’t mean that judges will openly sell themselves for campaign contributions. For the most part, they will decide cases as they would regardless, reflecting their beliefs and deciding cases appropriately. But there will be changes in the stridency, the details, the emphasis of their decisions so that their constituencies are clear who their friend is. And for those whose friends happen to be broke, say people like criminal defendants, or have no trade association with a political slush fund to offer up to candidates for office, there will be few ways to help judicial candidates whose sensibilities are not antagonistic to their cause.
The point is that “moderate” candidates for judgeships, which means those who truly desire to be fair and open-minded, who don’t come to the bench to further a pre-conceived agenda, will find themselves odd-judge-out in the corporate funding race. They can’t be trusted. They aren’t bankable. They aren’t a sure-bet. Everyone wants reliable judges, including corporations. We just have different definitions of reliable.
Tony Mauro, however, notes that others don’t buy into the notion that Citizens United will change much in judicial elections, despite former Supreme Court Justice Sandra Day O’Connor’s contention that the case makes merit selection the only way to go.
But some commentators doubt that Citizens United will produce dramatic, opinion-shifting examples of corporate excess. Jan Baran, partner at Wiley Rein in Washington, said at the Georgetown conference that 26 states already have no limits on corporate spending in state campaigns — and their elections are not that different from those that restrict corporate participation. “There have been no stampedes [of special interest money] in those states’ elections,” Baran wrote in an op-ed column for The New York Times.There’s much merit in the argument against merit selection, though there’s little promise to judicial elections aside from silly populist notions. In other words, neither process is without its own ability to go horribly wrong.
Supporters of the high court’s decision also caution that using nominating commissions to advise the governor on whom to appoint does not always remove politics from the process. Bradley Smith, a former Federal Election Commission chairman who is now a professor at Capital University Law School in Ohio, said nominating commissions should not be “dominated by elite interest groups on either side of the legal community, such as the trial bar or business groups.”
Whether Citizens United will mean a sudden influx of corporate cash in judicial elections in high population areas, or courts that tend to deal with cases that have a significant impact on business, has yet to be seen. Whether judges, or judge wannabes, will be inclined to sell themselves for a decent contribution has yet to be seen.
But regardless of whether corporations have a first amendment right to express their political views, and given a term of office of 14 years for New York’s Supreme Court justices, the impact on the judiciary could be devastating should there be some muscle flexing. Maybe the best answer is to change the canons to allow judges to sell advertising space on their robes. At least we will be able to easily identify a judge and his sponsor.
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