Judge for Yourself

At both the state and federal level, the structure of our government consists of three branches: executive, legislative and judicial. It’s supposed to create a system of checks and balances to keep any one branch of government from stepping over the line. Fury from any one branch at another has been a regular part of American history. From Congressional overrides of presidential vetoes, presidents’ issuance of executive orders in the absence of empowering legislation to Franklin D. Roosevelt’s 1937 attempt to “stack” the Supreme Court – by expanding the court to as many as 15 justices (declared unconstitutional) – to dilute their challenges to his legislative goals.

The appointment of judges is also fraught with risk and bias. When it is the executive branch that has an appointment right, but the legislature has a confirmation right, the process can get downright messy when the votes needed to get approval rest with the party opposite from the relevant governor or the president. Dozens of Obama’s appointments either remain unconfirmed by the Senate, as the backlog of presidential appointments in general remain sizeable, or have been exposed to heavy questioning to insure that the opposing party secures a biased appointment reflecting their views. To delay until elections, in case the new president shares the right party affiliation with the majority in Congress, is a typical strategy. After all, if courts provide a check against the legislature, what better way to insure that does not happen by making sure the new judges share that legislature’s biases.

In many states, including my California, judges are up for election. Even if they have received interim appointments to fill vacancies, judges have to run for office, and running for office costs money. It would seem pretty obvious, as with most elections, the biggest donors aren’t making contributions for the joy of sustaining democracy. They are trying to buy favoritism and bias. And in a nation that seems to keep marketing how corruption-free our American system of government is, this little fact has to be not only hypocritical but more than a little uncomfortable.

Also, the practice of allowing judges to ask for money is so disturbing that of the 39 states that have a judicial election process, 30 actually forbid judges from soliciting individuals or organizations for campaign money, even though in most such elections, money does flow in, one way or the other, from frequent litigants and attorneys practicing before that court. In light of the recent Citizens UnitedSupreme Court decision, one that used First Amendment reasoning to take the cap off of campaign and issue contributions from institutions, the issue of enforcing that ban on judicial solicitation is itself facing a constitutional challenge under basically the same reasoning and has made its way up to the U.S. Supreme Court.

Florida’s ban on solicitation extends beyond one-on-one solicitation to any “ask” for money by a judicial candidate. The case, Williams-Yulee v. Florida Bar, has been argued before the Supreme Court after four federal appellate courts have negated such restrictions, so we will be getting a decision soon. And there are nine states that have never had such a solicitation ban: “Personal solicitations are allowed in the judicial ethics rules of nine states, including Texas and Alabama. Four former chief justices from those states filed a brief describing their own use of a practice they said was ‘ingrained in our political and legal cultures.’… ‘Our experience confirms,’ they wrote, that ‘there is a real risk that solicitation can morph into a demand.’

“In an interview, one of the former chief justices, Thomas R. Phillips, who served on the Texas Supreme Court, added that ‘dialing for dollars sometimes results in untoward things slipping out during those conversations.’… Mr. Phillips said that allowing personal solicitations may be appropriate in some states. But he added that other states should be free to make the opposite choice, notwithstanding the First Amendment.” New York Times, January 18^th. With state supreme court justices and the American Bar Association in support of such restrictions, the pressure is on, but some argue that where bans do exist, they tend disproportionately to favor incumbents; outsiders remain outside with little hope of getting elected.

“Margaret H. Marshall, a former chief justice of the Massachusetts Supreme Judicial Court, responded: ‘Of course it’s effective. That’s the problem. The level of coercion is that much higher.’… Randolph Wolfson, who has lost two judicial elections in Arizona, said solicitation bans protect incumbent judges and disfavor outsiders. ‘The inability to raise funds directly for a minor-party candidate is just devastating,’ he said… Mr. Wolfson’s challenge to Arizona’s ban is pending before the full United States Court of Appeals for the Ninth Circuit, in California.

“Judge David Certo, who serves on a state trial court in Indianapolis, said that his state’s solicitation ban went too far… ‘I’m not allowed to solicit anybody for a contribution — not my mom, not my wife, not my brother, who lives in Arizona,’ he said.

“He admitted to a little uneasiness about some sorts of requests… ‘Getting money from people appearing before me is probably not the best idea,’ said Judge Certo, who lost a First Amendment challenge to the Indiana law. ‘But lawyers appearing before me are eager to help me.’” NY Times. Are general solicitations not directed at specific individuals or organizations acceptable? Can you differentiate against individual asks? Is there any real way to eliminate this buying of favoritism that can actually be formulated by the Supreme Court? What’s your opinion?

I’m Peter Dekom, and however you look at how judges find their way into office… it’s never perfect!