The Transformation Of Judges Into Politicans

Andrew Sullivan —  Jan 22 2015 @ 2:22pm

There is a case before SCOTUS on whether judges should be able to solicit campaign donations:

Mark Joseph Stern provides background on the case:

The dubious ethics of judicial elections hasn’t stopped 39 states from holding judicial races, but 30 of those states have at least tried to keep them as clean as possible by forbidding judges from personally soliciting contributions for their election campaigns. This seems like common sense: Judges aren’t politicians, and they shouldn’t be forced to act like them—especially when their donors could one day appear in their courtrooms.

But the court that brought you Citizens United v. Federal Election Commission is in short supply of common sense when it comes to campaign finance regulations. On Tuesday, the justices heard the case of Williams-Yulee v. the Florida Bar, a challenge to a Florida rule barring judicial candidates from personally requesting campaign contributions.

Lanell Williams-Yulee, a former candidate for county court judge in Hillsborough County, launched her campaign with a personalized mass-mail fundraising letter that asked for “an early contribution” to help her “raise the initial funds.” She promptly got charged with professional misconduct by the Florida Bar. The Florida Supreme Court upheld Williams-Yulee’s sanction. Now she’s appealing it to the Supreme Court, under the theory that the First Amendment protects her right to ask voters for campaign cash.

He expects that “Williams-Yulee will probably win this case.” AJ Vicens points out that judicial elections “are becoming increasingly more expensive”:

During just those two years, state high court, appellate and lower court judicial candidates raised more than $110 million, according to the National Institute On Money In State Politics (state judicial candidates raised just $83 million total in the 1990s). Justice At Stake, a nonpartisan judicial election watchdog group, points out that 20 states have surpassed records for judicial election spending since 2000. Independent spending on judicial elections is also booming, with more than $24 million being spent in the 2011-12 cycle compared to just $2.7 million a decade earlier.

Jeff Shesol looks at recent SCOTUS rulings on related issues:

It’s true that in 2009, in Caperton v. A.T. Massey Coal Co., Justice Anthony Kennedy joined the Supreme Court’s liberals in requiring a West Virginia Supreme Court justice to recuse himself from a case in which the defendant’s C.E.O. had spent three million dollars to get the judge elected. The decision showed at least some solicitude for judicial independence in the face of all that campaign money. Yet Kennedy, in the majority opinion, took pains to stress that the facts in this case were “extreme,” and less than a year later, in Citizens United, he made the blithe assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Indeed, he took it even further: “The appearance of influence or access,” he added, “will not cause the electorate to lose faith in this democracy.” This, as any legal scholar will recognize, is the doctrine of willful naïveté, a central element in all of the Roberts Court’s campaign-finance rulings.

Garrett Epps is disturbed by judges openly soliciting political donations:

I yield to no one in my appreciation for free expression, political or otherwise. But in the years since Citizens United, First Amendment dialogue has increasingly divorced itself from any practical considerations. When did preserving public confidence in the courts cease to be “compelling”? When did the appearance of unfairness become “mere”? Opponents of the rule argue that since states allow judicial campaign committees to raise funds, they have to allow judges to do the same. The logic of this argument is elusive; there is a difference between being asked by an employee to give money, and being asked by the judge himself. In addition, they argue, states that object to the influence of money can simply stop electing judges. They could, but in practical terms, judicial election is going to be with us for a long time. The question should be how states can retain their inherited systems and preserve some of the independence the federal judiciary guards for itself.

Noah Feldman wants to end judicial elections entirely:

In a perfect world, I think the justices would strike down judicial elections as inherently unconstitutional. Then they could make the whole problem go away. But the states are laboratories of democracy, as Justice Louis Brandeis once said. Within those laboratories, the experiment is allowed to go terribly wrong. Judicial elections have been with us for almost 200 years, and despite the efforts of retired Justice Sandra Day O’Connor, they aren’t going to disappear anytime soon. Until then, judicial elections are a classic example of a hard case. And you know what they say about hard cases: They make bad law.

Reity O’Brien hears that a narrow ruling is possible:

Ed Whelan, a former clerk to Justice Scalia and director of the conservative Ethics & Public Policy Center, said it’s possible that the court could leave the First Amendment question unresolved yet decide that Williams-Yulee did not actually violate Florida’s ban. The mass mailing was a decidedly impersonal solicitation and did not yield contributions, let alone the quid pro quo exchanges that judicial campaign donations may invite. It’s also possible the court could dismiss the case entirely, Whelan said. However, he noted, the court takes on cases “to resolve these grander issues, not to engage in error correction.”

Bloomberg View’s editors think there must be a better way:

As long as states elect rather than appoint judges, campaign contributions — no matter who does the asking — will allow interested parties to curry influence. Of course, moving to an appointed system of judges does not eliminate the potential for corruption. Governors can pick judges the same way that presidents pick ambassadors, with friends and fundraisers jumping ahead of more qualified candidates. But legislators can mitigate that threat by subjecting a governor’s appointments to their approval.

Legislators can also set judicial terms that are fixed and staggered, limiting any particular governor’s ability to stack the court. And they can impose mandatory retirement ages, which increases turnover. Mandatory retirement ages and fixed terms would give the public’s elected representatives more opportunities to influence the bench.