It wasn’t long after the Supreme Court’s decision in Citizens United that serious, if not hysterical, concerns were raised about corporations expending huge sums of money to buy state court judges. With some exceptions, it didn’t come to pass. Given the way state courts work, it wasn’t a solid investment.*
But times change, and the Least Dangerous Branch succumbed to the screeches of politicization that permeated people’s perception of everything.
Last week in Wisconsin, an election for an open seat on the State Supreme Court was so bitterly contested that voters were barraged with more than $2.6 million in television and radio ads. Most of the money was spent by partisan outside groups attacking the candidates, who were nominally nonpartisan, for past decisions in criminal cases.
The New York Times editorial board goes on to detail similar tactics to undermine the integrity of the judicial branch in Kansas, North Carolina and Pennsylvania.
Are we the only ones sensing a pattern here? Across the country, state judges are under increasing fire from lawmakers and outside groups angered by their rulings, their power, their tenure or simply their independence. That independence is, of course, central to the separation of powers, which defines American government, and to the legitimacy of the judicial branch in the eyes of the public. Going after judges for partisan reasons may not be a particularly new pastime, but it has become more popular as America’s politics have become more polarized and as brute tribal warfare replaces a respect for basic democratic values.
Am I the only one sensing that the editorial board doesn’t read its own paper, or any paper for that matter? Linda Greenhouse, a contributing op-ed writer for the Times since she was exiled to New Haven, has written column after column castigating Gorsuch for being a political tool, challenging C.J. Roberts’ manhood in standing up for her flavor of social justice, attacking the Republican majority as flagrant manipulators of right-wing causes.
When you work this hard to attack every decision, every vote, as a mere manifestation of political machination, what did you think would come of it?
Of course, electing judges, as is done in the majority of states, doesn’t just affect their behavior. Equally important, it affects how the public perceives them. One poll found that almost nine in 10 voters said campaign contributions and spending by independent groups affect judicial decisions. Almost half of state judges agree. It’s no surprise, then, that studies have found judges more likely to issue pro-business rulings when business interests donate more to judicial campaigns and less likely to rule in favor of criminal defendants when the number of TV ads related to judicial campaigns increases.
The issue of electing, versus appointing, judges has long been one of concern for lawyers. But to be fair, it’s just a matter of serving the right master. If a judge must run for popular election, then his rulings will be scrutinized by the electorate through the lens of distorted campaign ads. Business will put its money behind those who serve it well. The public always appreciates its safety over the rights of criminals. But when appointing judges, the party bosses make the call, and judges instead appeal to their desires rather than the public’s.
But no matter how judges get on the bench, the important thing is to keep them as insulated as possible from outside political pressures. Instead, many lawmakers in recent years have been doing the opposite, treating judges like political pawns who are, or should be, more beholden to a partisan platform or public pressure than to the law. For those lawmakers to then complain about judges acting like legislators is rich.
Who could disagree that judges should be “beholden to the law” rather than partisan political pressure?
Especially dangerous are efforts to impeach justices over specific rulings, as is happening now in Pennsylvania.
Or like Califorinia Judge Aaron Persky, facing a recall vote because the vicious yet deceitful Michele Dauber was able to confuse the deeply emotional over his sentence of Brock Turner?
Of course, judges have political beliefs and ideological persuasions. Everyone does. But public officials must not treat the judiciary as if it were just another political branch. Doing so undermines public respect for state courts — which provide most Americans with their only experiences with the judiciary — and debases their hard-won independence, for nothing but partisan gain.
This is both true and somewhat misleading. Good judges are fully capable of performing their duty despite their politics. Indeed, good judges come to the realization that ideologies, so clear and certain to pundits and twitter tribes, fail to suffice for rational legal decisions. These judges apply precedent even if it’s not what they would decide, follow the law even though it may be foolish or inadequate, and try to do their best with what they have to work with. They’re not perfect, of course, and not all judges are “good judges,” some having their foremost qualification being their capacity to lick stamps in the party boss’ office.
But the New York Times is right, that the judiciary must maintain its integrity and independence if it is to fulfill its purpose in our scheme of governance. But then, the Times (and other media outlets) needs to stop doing everything possible to politicize judges. They need to stop praising the unduly passionate advocates from using lawfare to accomplish their goals when legislatures fail them.
*As Simon Cameron said, “an honest politician is one who, when he is bought, will stay bought.”