Independence of the Judiciary Judicial Elections Are Becoming More Politicized 1. Judicial campaigns that are getting "noisier, nastier, and costlier" blur the lines between the role of judges as impartial arbiters and the political role of lawmakers and executive branch officials. The public begins to view judges as being just like any other politicians. 2. A survey conducted for the ABA in August 2002 revealed that nearly three-fourths of Americans are concerned that the impartiality of judges is compromised by their need to raise campaign money. Over one-third of respondents said they were "extremely" or "very" concerned. 3. This perception threatens the public's trust and confidence in our state courts. 4. Campaigns are costing more and more. There was a 61 percent increase in total money raised by state supreme court candidates since 1998, according to a recent study. According to "The New Politics of Judicial Elections," the amount of money raised for supreme court candidates doubled between 1994 and 2000. In Alabama, candidates for the supreme court raised $13 million—an average of $1.2 million each. 5. As a result of the soaring campaign costs, judges feel pressure to raise more and more money. According to a survey conducted for Justice at Stake, nearly half of the judges feel pressure to raise campaign money. And it is even higher for judges of appellate courts. 6. Is it any wonder that three of every four people believe that campaign contributors can influence judicial decisions? And according to a national survey of judges, even one judge in four believes contributions influence judicial decisions. In a Texas survey, nearly half of judges expressed this concern. Interest Groups and Judicial Elections 7. Much of this money is coming from special interests. They are pouring millions of dollars into judicial campaigns to further their own interests. Usually there is no public disclosure of the amounts or the sources of money. The trend is for special interests to produce and air television commercials, usually "attack" ads, against a candidate they oppose. 8. Furthermore, the survey shows 9 in 10 Americans think these special interests are trying to shape public policy to their own ends. Independence of State Courts Threatened 9. When we talk about the judiciary, a great many people think about the U.S. Supreme Court or other federal courts. But very real threats to judicial independence are increasing in our state courts. Cases in state courts outnumber those in federal courts by a margin of 300 to 1. Federal judges enjoy life tenure, while over 80% of state judges must face election of some kind. 10. Here are some examples of the problems state courts face: 90 percent of the voters—and 87 percent of the judges—are concerned because voters do not have enough information on judicial candidates and they believe judges are selected for reasons other than their qualifications. Selection methods deter qualified applicants. Some lawyers simply believe the process is too political. 11. Restrictions on judicial campaign speech that were designed to maintain judicial impartiality have been loosened by recent court decisions, namely the decision of the Supreme Court of the United States in Republican Party of Minnesota v. White. 12. The White decision struck down the "announce clause" of judicial codes in nine states, which had prohibited judges from announcing their views on disputed legal or political issues that might come before the court. 13. Other provisions of state judicial codes are likely to be challenged as well, such as those prohibiting judges and judicial candidates from making specific pledges or promises about how they would rule in a given case or class of cases. 14. In some areas, citizens think judges are not being held accountable. Judicial discipline systems are criticized as ineffectual, and judges face increasing pressure to conform their decisions to serve the interests of particular constituencies. 15. The national public opinion poll conducted for Justice at Stake has some numbers that are disturbing: Most people—62 percent—believe there are two systems of justice, one for the rich and powerful, and one for everyone else. 90 percent of African-Americans believe there is a two-tiered system of justice. And 87 percent of judges think this two-tiered perception is of concern. Discussion Questions 1. What are the expectations of someone who donates major sums of money to a candidate in a political campaign? Are those expectations different if the candidate is running for a judicial office? Should they be? 2. What is the overall effect of negative ads in a judicial campaign? Do they promote disrespect for the rule of law and the courts? 3. Whatever its flaws, television is a very powerful communications medium. How might it be used in a judicial campaign to help people understand courts and the legal system? 4. What other methods of communication might help the public gain such understanding in a campaign? How can such materials/methods reach as many people as possible? 5. What is the likely effect of permitting candidates for judge to announce their views on legal and political issues? 6. To what degree should judges be accountable for their decisions, and to whom should they be accountable? What other means, besides retention elections, can be used to hold judges accountable? 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