Judgment Day … for Judges
WHY YOU SHOULD CARE
Because the right to a fair trial may be in jeopardy.
By Emily Cadei
A hypothetical dilemma for you, dear reader:
Imagine you sue a carmaker for selling you a sedan with a faulty engine — and then discover the manufacturer had donated tens of thousands of dollars to the judge hearing your case. Do you think you could get a fair trial? Now consider: Outside opposition groups have poured thousands of dollars into a campaign against a locally beloved judge. Should the judge be able to rally contributions herself?
Those are some of questions the Supreme Court will grapple with this term in Williams-Yulee v. The Florida Bar, the next and maybe final frontier in the campaign finance battle. Williams-Yulee pits two bedrock rights against each other: the right to a fair trial, on the one hand, and the right to free speech, which jurisprudence says protects politicians’ campaign donations. The case hasn’t gotten much notice — this docket’s headlines have focused on Facebook rap lyrics and prison beards — but with 98 percent of the country’s judges elected, its outcome could alter the fundamentals of American democracy.
While spending on judicial campaigns in the U.S. has skyrocketed over the past decade-plus, most judges cannot directly solicit donations.
After Citizens United, the 2010 Supreme Court decision that unleashed prior restrictions on campaign financing, the floodgates of outside spending have opened into state judges races. Independent groups spent a record $15.4 million for state Supreme Court races alone in the the 2011-’12 election cycle, according to a report from the liberal Brennan Center for Justice at New York University’s law school. Conservative groups, in particular, are getting involved in these contests for the judiciary, which they view as too often a roadblock to their policy agenda.
And while spending on judicial campaigns in the United States has skyrocketed over the past decade-plus, most judges cannot directly solicit donations; doing so, the theory goes, could bias them on the bench or unduly pressure potential donors. Opponents of campaign finance laws consider that an unfair restriction on free speech.
So the question is: Are judges any different from other elected officials? As First Amendment expert Floyd Abrams observed at an event at the conservative Heritage Foundation last month, “Politicians are supposed to react to, listen to, take account of the view of the public. Judges are not. The old-fashioned way, judges are supposed to apply the law.”
The incentives aren’t set up that way. Most states — 39 to be exact — hold some kind of election for state and local judges. (Federal judges are a different ballgame.) That’s set off multimillion-dollar contests in places like Tennessee, where three state Supreme Court justices did battle this year with groups funded by conservative billionaires Charles and David Koch, among others. All three ended up retaining their seats in the August election, but only after raising hundreds of thousands of dollars, largely from members of the legal community.
At the same time, judges face numerous restrictions on how they can campaign. Thirty states have some sort of prohibition on judges directly soliciting money for campaigns. Instead, they can open campaign committees that ask for money on their behalf. Attorney Lanell Williams-Yulee learned the distinction the hard way when she ran for a judicial post in Hillsborough County, Florida, in 2009 and sent mass mailings soliciting campaign donations. She lost the election, and afterward the Florida Bar cited her for violating its judicial code of conduct.
If the justices end up agreeing with Williams-Yulee, judges will be able to directly solicit money from people — including the very litigants and lawyers who appear before them. That’ll be a significant change, according to Matthew Menendez, a Brennan Center lawyer. There’s “concern potential judges might be able to apply pressure,” he says. When the asking is outsourced to a committee, it feels less coercive, he says.
Maybe that’s the case. But there is also an argument, as Abrams put it last month, that “if you’re going to have elections, let’s treat them like elections.” In other words, it’s weird to subject judges to the ballot box, but not allow them to campaign like any other elected official.
It’s weird to subject judges to the ballot box, but not allow them to campaign like any other elected official.
“Every way of choosing judges has problems,” says professor Michael McConnell, director of Stanford’s Constitutional Law Center. “I guess I’d rather have the voters pick than the bar” — which is what ends up happening, McConnell says, in the states where expert committees select judges instead of holding elections, essentially allowing lawyers to pick their “regulators.”
The current Supreme Court has been aggressively swatting down campaign finance restrictions for political elections. But key justices, like Anthony Kennedy, have also signaled that they regard judges differently. Whether that means it is likely to side with the Florida Bar and the rest of the states that restrict judicial campaigns is an open question. Says Menendez: “I think there’s a reasonable chance you could see a 5-4 decision or a 6-3 decision in either direction.”