Tuesday, November 01, 2011

Special interests buying judicial elections?

Adam Cohen, a research scholar and lecturer at Yale Law School, posts yesterday on Yahoo, via Time.com, that America's judges are for sale -- and special interests are buying.

In support of this serious charge, Cohen cites to this study (.pdf document) by New York University Law School's Brennan Center for Justice, the National Institute on Money in State Politics, and the Justice at Stake Campaign. Cohen writes that the study, entitled The New Politics of Judicial Elections 2009-2010, "found that a small group of super spenders plays the biggest role, using their money to buy the kind of judges they want hearing their cases. These super spenders are the usual suspects: mainly big business, corporate lobbyists, and trial lawyers." This matters, Cohen writes, because "as money floods into judicial elections, we are getting courts that are filled with judges whose first loyalty is not to justice — or to the general public — but to insurance companies, big business and other special interests."

The New Politics report focuses on high-profile, high court elections (the 2010 Illinois and Iowa Supreme Court retention contests feature prominently). Special interest money; attack ads; unfair, single-issue, partisan politics -- all of these have the potential to corrupt, and surely corrode, the judicial election process. Cohen writes, "The American ideal of justice requires neutral judges, whose only commitment is to the law." It's hard to argue with that. But how do we achieve this desired goal? Cohen notes that some suggest public financing of judicial elections but, he cautions, it is uncertain whether schemes along these lines would survive scrutiny by the United States Supreme Court. Cohen adds:
Many reformers think that the answer lies in ending the direct election of judges, and switching to a system (which some states already have) of appointing judges. That takes away the problem of elections, but special interests can shift their strategy to lobbying governors to appoint sympathetic judges.
In other words, why spend money to elect four justices when all you need is a single governor?

I don't believe -- I can't believe -- our judicial system has been compromised to the extent claimed by critics such as Mr. Cohen or the authors of the New Politics study. I concede there is always a danger from creeping partisanship fueled by unthinking political spending. But I believe the best defense against special interest money corrupting the judicial election process is an attentive, informed electorate.

And there's something else that should give the big-spending special interests pause: I understand that special interests would love to know that a given judge will always rule in their favor every time one of their cases goes to court. There's no way to guarantee this, however, without committing outright bribery. Short of the actual commission of a felony, even the most spineless, pliant jurist might get confused, in a given case, over which contributors should get preference. After all, successful political campaigns require the building of coalitions from sometimes conflicting interests. Sometimes these conflicts will burble up in court.

As a practicing lawyer, however, I can suggest a fallback position -- and a legal one at that. I want the judges before whom I appear to be intelligent, knowledgeable, courteous, practical, fair and impartial. That won't guarantee me 'victory' in any given case, but it will ensure an honest, respectful hearing. I won't be happy about it, but I and my clients can more readily accept an adverse result in a case that we know was fully and fairly considered. The most special special interests should want nothing more. If the special interests really want to "buy" justice, they should invest in campaigns for judges that can't be bought.

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