Buying and selling judges

The following editorial was published by the Washington Post on November 5, 2011.

FOR THOSE who believe that judges should be bought, sold and marketed like any other product, the 2009-10 election cycle brought welcome developments. Special-interest groups from both the left and right inundated judicial campaigns across the country with record levels of cash. These groups — dominated by lawyers, lobbyists, businesses and political parties — independently spent a combined $11.5 million, or nearly one-third of the $38 million spent on these campaigns.

The money is question is a pittance compared to the sums spent by groups and candidates for political office, but its impact is profound. Campaigns become demonstrably nastier as the level of outside group involvement increases. Outside groups, for example, were responsible for funding three out of every four attack ads aired during the 2009-10 judicial election campaign season.

These are but a few of the disturbing findings in a recent report by Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — a trio of public-interest groups that follow judicial elections closely. The revelations once more affirm the need to discard the election of judges.

Total spending in judicial campaigns dipped during 2009-10, typical for for off-year elections. But the incursion and influence of special interests grew. Just 10 outside groups accounted for nearly 40 percent of the spending nationwide. Lawyers and lobbyists provided the most direct contributions to candidates, funneling $8.5 million to judicial campaigns. They were followed by business groups and political parties, with $6.2 million and $3.5 million, respectively.

Unopposed retention elections — in which voters give a thumbs up or thumbs down to sitting judges — no longer insulate jurists from the most pernicious political elements. National spending on these elections between 2000 and 2009 amounted to just over $2 million, but they attracted nearly $5 million just during the 2009-10 cycle. National interest groups poured hundreds of thousands of dollars into the successful campaign to unseat three Iowa Supreme Court justices who joined a decision recognizing same-sex marriage. The message was clear: Render decisions that rile the public and risk the loss of your seat.

This is precisely the problem with judicial elections. Judges should not have to worry about pleasing political constituencies — whether they are business groups, unions or those who support a particular definition of marriage. Judges in many circumstances are meant to be a check against these forces and the unconstitutional excesses of the elected bodies. The notion of impartial justice for all is obliterated when judges are forced to think like politicians and to curry favor with monied interests just to keep their jobs.