Justice for Sale

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AT LAW

Justice for Sale

How special-interest money threatens the integrity of our courts.

BY SANDRA DAY O'CONNOR

Thursday, November 15, 2007 12:01 a.m.

Voters generally don't express much interest in the election of judges. This year, as in years past, voter turnout in elections for judges was very low. But judicial elections, which occur in some form in 39 states, are receiving growing attention from those who seek to influence them. In fact, motivated interest groups are pouring money into judicial elections in record amounts. Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions.

The final four candidates running for open seats on the Supreme Court of Pennsylvania raised more than $5.4 million combined in 2007, shattering fund-raising records in Pennsylvania judicial elections. Since 2006, high court campaigns in Georgia, Kentucky, Oregon and Washington also set fund-raising records. Since 2004, nine other states broke records for high court election spending.

Most of this money comes from special interest groups who believe that their contributions can help elect judges likely to rule in a manner favorable to their causes. As interest-group spending rises, public confidence in the judiciary declines. Nine out of 10 Pennsylvanians regard judicial fund raising as evidence that justice is for sale, and many judges agree. According to a nationwide survey by the Annenberg Public Policy Institute, partisan judicial elections decrease public confidence that courts are fair, impartial and operating in the best interest of the American people.

The first step that a state like Pennsylvania can take to reverse this trend is replace the partisan election of its judges with a merit-selection system, or at least with a nonpartisan system in which the candidates do not affiliate with political parties. In a typical merit-based system, an independent commission of knowledgeable citizens recommends several qualified candidates suitable for appointment by the governor of the state. After several years of service, the appointed judge's name is then submitted to the voters for an up or down vote known as a retention election.

The second step a state can take is set up campaign-conduct committees to educate voters and the media about the criteria people should use to select judges. These committees can also publicize accurate information about the sources of big contributions, providing the kind of transparency that allows voters to decide whether a judicial candidate's impartiality may be compromised by her contributors. Finally, the committees can flag inappropriate campaign conduct and provide information to help voters interpret charges made in campaign advertising sound bites.

The boundary of decency was certainly crossed in Pennsylvania this year when a candidate for the Supreme Court was called "the drug dealer's choice" by the opposing political party because of a decision that she had made to overturn a conviction based on an illegal search. Campaign-conduct committees can help restore a little perspective when the going gets too rough in judicial races.

The third step a state can take is distribute voter education pamphlets to provide accurate and unbiased information about the qualifications of a judicial candidate. Voter education guides can provide information about relevant qualifications that are often left out of campaign ads and meager media coverage.

These three reforms will help, but will not solve the problem of direct interest-group attacks on judicial candidates. Pennsylvania's experience demonstrates this problem. In addition to the contested Supreme Court seats, 67 state judges were up for retention election in Pennsylvania this year. Retention elections are historically very low profile, but they became contentious in 2007 when a small but organized grass-roots campaign sought to oust all but one of the judges whose names were before the voters because the judges had accepted a legislatively enacted pay raise rather than returning the money to the state treasury. They attacked the judges as "pigs in robes," conjuring images of greedy out-of-control politicians.

Fortunately, Pennsylvania voters were not swayed by the spurious attack, but that doesn't mean that the attacks weren't harmful, as they were essentially all anyone heard about Pennsylvania's 2007 retention elections. One of the dangers of low media coverage and high interest-group spending is that voters hear only from activists who have targeted a particular judicial race. The Pennsylvania retention races show how easily the issues in judicial elections can be controlled by special interests.

Special interest appeals to emotion and policy preferences tempt voters to join efforts to control the decisions of judges. Voters are less likely to devote themselves to the core value of judicial independence, because when judges apply the law fairly and impartially they cannot guarantee the outcome any particular voter might want. But fair and impartial judging is an essential part of our government, and must be preserved.

In the long term, a commitment to judicial independence will only come from robust civics education, starting at a very young age. Today, only a little more than one-third of Americans can name the three branches of government--much less explain the balance of power among them. If we lose appreciation for our government's structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of the government. With the stakes so high, we cannot wait until the election cycle to educate the citizenry. We must start with civics education in our nation's schools.

Perhaps children can understand the role of a fair and impartial judiciary better than any of us. Children depend on their teachers, their parents and their sports referees to know the rules and to apply them fairly. Thus schools are the ideal place for the life-long process of civics education to begin. In the meantime, we need to look at practical short-term reforms that will restore public confidence in the selection of state judges.

Justice O'Connor is a retired associate justice of the Supreme Court of the United States.

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