Republican Party of Minnesota v. White: Should Judges Be More Like Politicians?

The Supreme Court\u27s decision in Republican Party of Minnesota v. White shows how unrealistic five justices can be about what happens in judicial election campaigns, and also - ironically - about how much judges differ from legislators and others who run for office. This reality was captured concisely by Robert Hirshon, immediate past president of the American Bar Association (ABA) in his statement following the Court\u27s ruling: This is a bad decision. It will open a Pandora\u27s Box.... The decision will change judicial election campaigns in such a way that the quality of the pool of candidates for the bench will likely diminish, good judges will be less willing to seek reelection, and the public\u27s cynical view that judges are merely another group of politicians will gain further impetus. This will directly hurt state courts and indirectly hurt all our courts. After noting the majority and separate opinions - which, unsurprisingly, raise many questions - this article will predict what litigation lies ahead, then describe the current judicial election environment and prospects for reform

Judges\u27 Pay: A Chasm Far Worse than Realized, and Worsening

For our state judges today, let us put aside what might be thought their appropriate reward compared to the reward for private-sector lawyers. Of course judges earn less than they would in private practice, and of course judges enjoy rewards other than salaries. What is surprising is how severe the gap is between the pay for judges and for the private bar-and, strikingly, the gap between the pay for judges and for other public employees. What is deeply disturbing, indeed dangerous, is how the gaps are worsening. Our compensation for judges is so low, that by reducing the caliber and stature of those who are in the pool... willing to serve, this treatment is the most widespread, persistent, and damaging attack on judicial independence-as Chief Justice Roberts said

Impacts of White

Changes in judicial elections stem from four identifiable causes. First, court decisions involve increasingly higher stakes and more serious consequences. The U.S. Senate confirmation battles also reflect this cause. Second, non-candidate groups, many from out of state, bring in enormous sums of money which often leads to ugly, even damaging, campaigns. Third, the first two causes are making judicial campaigns more like non-judicial campaigns, bringing new elements to judicial campaigns: campaign consultants and a win-at-any-cost approach

Analyzing the Bipartisan Campaign Reform Act of 2002

The Bipartisan Campaign Reform Act of 2002 ( BCRA ) is the laboratory in campaign finance law. When analyzing BCRA, it is important to look at the Missouri state law that led to the Supreme Court case, Nixon v. Shrink Missouri Government PAC. In Shrink Missouri, five justices upheld Missouri\u27s relatively low simple limit on contributions to candidates. The law in Missouri limited contributions by anyone to candidates, but there was no limit as to how much a person or entity could give to a political party committee or to a political action committee (PAC). Further, there was no limit on how much a committee could give to another committee or any limits on contributions or spending by corporations, unions, or PACs

A Plea for Reality

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, most States have changed the way they choose judges at some point in their history, often more than once. My focus is on judicial elections. Since I began work on them, I have adhered to agnosticism about methods of selection. One reason is this: My writing and work aim at making a difference, but to say anything new on this subject seems almost impossible, and for the last generation the battles to change selection methods have been futile. Of course past performance is no predictor of the future, but, as the chief justices formally resolved two years ago, “elections will stay in many and perhaps all of the states that have that system.” People who advocate ending contestable elections always point to some pending bill in some state (lately, Nevada), but for over one hundred years, the hurdles in turning proposals into constitutional amendments have been all but insuperable. The endless debate does have new elements. Some “merit” systems have recently suffered unusual confrontations between governors and nominating committees. Also, we have new analyses drawing upon the actual operation of “merit” systems to argue that some are dominated (or even controlled) by the organized bar and that at least some actions have been partisan. Further, unless the Tennessee legislature does this spring what it refused to do in 2008, its “merit” system for appellate judges will terminate in June 2009. This would be the first time for any jurisdiction to return to contestable elections after ending them

Comment on Professor Carrington\u27s Article The Independence and Democratic Accountability of the Supreme Court of Ohio

In my view, whether or not Article III is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal judges independent, i.e., so protected from external pressures and internal incentives. Article III\u27s grant of life tenure is the bedrock of our Constitution\u27s guarantees (and therefore our Rule of Law and our protection of minorities arid dissenters) and assurances that lasting values are not eroded by ephemeral passions

Myth, Reality Past and Present, and Judicial Elections

Why do we have judicial elections? A democracy without elections for the legislature and executive (or, in parliamentary systems, for the executive as the leadership of the elected legislators), would be simply inconceivable. But no one would deny that eleven of our states, or many other nations, are democracies even though they do not elect judges. It might follow from that irrefutable, fundamental difference between elections for judges and for other offices, that judicial elections should not-or more to the point, need not-be conducted the same as other elections. Before we soar into debate, let us lay a foundation with elements of fact: first, the historical facts about why we have judicial elections; second, how well or poorly those facts-that is, the very purpose of having judicial elections-have been taken into account by the courts that have stricken efforts to treat judicial elections differently

Judicial Elections and Campaign Finance Reform

In the judicial realm, the issue of campaign finance cuts across all states that use any form of election as part of their selection or retention system, whether the elections are partisan or non-partisan. The raising of money for campaigns is a task that has to be performed in all states that use any form of election. Like many other things that we have discussed today it seems to involve a sort of balancing act. The state certainly has a strong interest in protecting the integrity of its judiciary and encouraging the public perception of the judiciary as an institution of integrity and honor. On the other hand, there are obviously First Amendment interests of the candidates and then contributors to be taken into account. There seem to be three questions that we should take up today, to one degree or another. First of all, what is the range of current practice in campaign fundraising - on behalf of judicial candidates? Secondly, what, if anything, would be preferable to current practice? And thirdly, what reforms, if any, would be constitutionally permissible