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Defense of Justice
Publication
Alicia Bannon
Elected judges and judicial independence have always been difficult. "Politicians are supposed to respond appropriately to the preferences of their supporters," said US Supreme Court Justice John Roberts. On the other hand, judges "must observe the greatest equity", striving to be "perfectly and completely independent".
In simple terms, judges are supposed to put aside their political or partisan preferences and decide cases based on their understanding. the law requires, even if it is unpopular. That's a lot to ask anyone, but election pressures can make this job even more difficult.
Thirty-eight states use elections for their high state courts. Across the country, these elections have become increasingly expensive and politicized. Today, one-third of the judges who sit in the elected courts have stood for $ 1 million elections, as evidenced by a recent report from the Brennan Justice Center and the National Institute of Justice. 39, money in the state policy. The electoral cycle of 2015-16 has seen a record number of races at the Supreme Court.
But while costly elections are now the norm in many states, new developments accentuate concerns that partisan and special pressures threaten Since the Supreme Court decision in 2010 Citizens United the rich interests seeking to influence Supreme Court elections are increasingly turning to group external spending rather than to candidates or political parties. According to the Brennan Center report, during the 2015-16 cycle, super PACs, social organizations and other groups spent $ 27.8 million on external expenditures for the Supreme Court elections, which represented 40% of election expenses of the Supreme Court.
This increase in external spending has resulted in a lack of staggering transparency. In 2015-2016, only 18% of group spending in Supreme Court elections could be easily attributed to transparent donors. More than half of all external expenditures were completely "dark," meaning that the underlying donors were not disclosed.
This secret money stream leaves voters without important information on the interests trying to shape state courts. interest for judges and litigants. By definition, dark money is hard to trace. But when we were able to track the money, it turns out that undisclosed money often comes from donors with strong economic interests in cases that come before courts of law. State – some of which are pending at the time of an election
. The rise in foreign spending also encourages debauchery, which often focuses on judges' decisions on the bench. Groups are much more likely to be negative than candidates for the judiciary, who often have a reputational interest in staying above the fray, and whose behavior is circumscribed by the rules of judicial conduct. During the 2015-2016 election cycle, nearly three-quarters of all negative ads were paid by the groups.
An advertising campaign in the 2016 election of the Mississippi Supreme Court is representative. The Center for Individual Freedom, a Virginia-based organization that does not disclose its donors, spent more than $ 750,000 on advertising attacks that accused Mississippi Supreme Court Justice Jim Kitchens of "siding with predatory children." ". argued that an accused who had been sentenced to death should receive a new trial because his appointed lawyer was ineffective, including not having prepared for trial or for the conviction of his client. Advertising does not provide any of these contexts or explanations
Together, these trends raise worrying questions as to whether modern judicial elections are consistent with judicial independence. More and more empirical research suggests that the pressures of elections affect the way judges vote, ranging from the election campaign to the imposition of longer criminal penalties during election years.
Many judges share these concerns. In Tennessee, for example, three judges retained their seat after a campaign focused on their death sentences, including television ads touting their record confirming "nearly 90 percent of death sentences."
In an interview with the Marshall Project, one of the candidates, Gary Wade, retired chief justice of the Supreme Court of Tennessee, asked about the long-term impact of the election. "This was not the kind of election I thought was overall a healthy thing for the judicial branch," said Wade. "Whether they are subtle or involuntary or not, the appeal judges may have a tendency to look over their shoulder."
In a 2001 survey of the Supreme Court, appellate courts and trial judges, 26% They found that campaign contributions had at least an impact on judges' decisions .
The judicial elections were first adopted as a reform to address the concerns that the judges were too close to the governors and legislators appointed to appoint them. It is high time for states to launch a new wave of reforms, which addresses how modern judicial elections threaten judicial independence. Among other things, states should rethink the selection of judges, including considering eliminating judicial elections in favor of a publicly accountable appointment system, and adopting a long and unique one-off period to avoid re-elected pressures. More targeted reforms, such as strengthening the rules of judicial recusal and the disclosure of black money would also help mitigate the influence of special interests on the courts.
The hearing room is supposed to be a place of equality before the law. Recent Trends in Judicial Elections Put This Fundamental Value at Risk
Alicia Bannon is Assistant Director of Program Management in the Democracy Program at the Brennan Center of Justice at the University of New Law School. York. She is the main author of the report: Who pays for judicial races ?: The politics of judicial elections 2015-16.
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