JUSTICE MUST NOT BE FOR SALE
By Robert Hirshon
President, American Bar Association
Our candidates for legislative and executive offices campaign for election, articulating and arguing their views on a wide variety of subjects. To help make their views widely known, these candidates seek campaign contributions. The most likely donors are the ones with something at stake – the ones whose interests could be damaged by a "wrong" decision or helped by a "right" one. Do the donors have special access? Do successful candidates remember them when considering legislation? As the current debate on campaign fundraising demonstrates, Americans are growing increasingly uncomfortable with these questions – and with the perception that access to public officials is for sale.
Now imagine that the official in question is a judge -- one before whom you may have to appear some day. Do you really want judges who are already committed to certain points of view? Or do you want judges to be impartial? Do you want the public to conclude that justice might be for sale?
Today, judges are elected in 39 of the 50 states; in 8 states, judges at all levels are elected in partisan battles. Eighty percent of state judges face election at some point, whether a contested election or retention election. And the costs of those elections are growing. In Pennsylvania in 1987, two candidates for the Pennsylvania Supreme Court raised a total of $523,000. By 1995, the tab had risen to $2.8 million. In Michigan in 1994, the winning Supreme Court candidate raised $180,000; by 1998, the winner’s war chest was $1 million. According to a recent study, "The New Politics of Judicial Elections," state supreme court candidates spent 61 percent more in 2000 than in 1998.
Public cynicism is rising right along with election costs. In the late 1990s, nine of 10 voters surveyed in Pennsylvania and in Ohio believed judicial decisions were influenced by large campaign contributions. The newsletter of the Michigan Manufacturers Association boasted that its contributions had "swayed the Supreme Court election to a conservative viewpoint, ensuring a pro-manufacturing agenda." In 1998, 79 percent of Texas lawyers told a survey that campaign contributions influence judicial decisions. The same Texas survey showed judges themselves agreeing that campaign contributions can have an effect on the impartiality of the bench.
Now, a new survey of judges by Justice at Stake shows that 50 percent of American judges feel under pressure to raise money.
The public’s confidence in our legal system rests on the idea that judges decide cases on their merits, not on the basis of campaign contributions or attack ads. Clearly, it’s time to address this issue.
The best solution would be to appoint judges based on merit, a position long favored by the American Bar Association and reaffirmed in early February. But since no state in recent times has switched to an appointive system, we must find alternatives.
First, we must recognize that there is no one size fits all solution. Hardly any two states use exactly the same system to select judges. We will have to address this problem state by state.
Second, we should address the issue of third parties paying for television commercials in judicial campaigns. Just as in presidential and congressional campaigns, ads backing judicial candidates masquerade as issue advertising, obscuring their real intent.
Third, we can try to dry up the special interest money fueling these battles. The ABA believes that public financing of judicial campaigns will help restore public trust in the courts.
This is not a problem we can solve overnight, but the work will continue to be a top priority for the ABA even after my term is over. The president-elect plans a major focus on judicial independence and accountability, tenure, compensation, ethics, and other factors affecting state judiciaries and the path to the bench.
Imagine a judge who is beholden to no one. Imagine a court that can ignore political considerations and be truly impartial. Imagine the certainty that justice is given freely – not sold. We can preserve that – and, as Americans, we deserve no less.