Politics by Other Means

Most of us will never be indicted for a crime or involved in a lawsuit, but imagine that you were. What sort of person would you want the judge to be? Impartial, of course. Wise, learned, and open-minded would help, too. The judicial system's trappings send the message that judges are, in fact, all these things: Judges sit higher than everyone else in the courtroom, demand we stand at their entrance and exit, and wear priestly robes to denote their special status and mastery of sacred legal texts. They are supposed to be beyond the pettiness of momentary emotion or partisan political concerns, a class imbued with intellectual and moral superiority.

Last week, the chief justice of the state of New York announced a new rule for the state's judges. Henceforth, if a lawyer who has contributed more than $2,500 to one of the judge's campaigns is slated to argue a case before the judge, the case will have to be reassigned. This rule, said The New York Times, "is believed to be the most restrictive in the country." What's truly mind-boggling, though, is the idea that lawyers who argue cases would ever be allowed to do so in front of judges on whom they have showered cash. Isn't the very fact that we elect judges self-evidently corrupt enough already?

To most of the rest of the world, it is. Apart from a few local elected judgeships in Switzerland and retention elections for some judges in Japan, no other country uses popular elections to determine who should sit on the bench (this document gives a rundown of the systems in different countries, if you're interested). Yet in America, most state and local judges attain their posts through that combination of glad-handing, pandering, character assassination, and begging for money that is the modern election campaign. Elections produce many things, but no one of any ideology would argue that those who win the most votes are the wisest and most just people we can find.

Judicial elections are not new; they have been used almost as long as America has existed. The real explosion of elected judges came about in the mid-19th century, when, in a series of constitutional conventions, one state after another decided that the ballot box was the best way to select those who would sit on the bench. For the next century and a half, however, the typical judicial election was a staid affair, with little money spent and little notice taken by most of the public. In recent years, however, judicial elections at all levels have come more and more to resemble elections for every other office, complete with large budgets, anonymous third-party groups, and vicious attack ads. The amount of money poured into judicial campaigns has been rising rapidly, and according to a comprehensive report from the Brennan Center, the biggest spenders in judicial elections aren't lawyers but businesses. In the wake of Citizens United, the 2010 case in which the Supreme Court gave corporations permission to spend as much as they want on election campaigns, the corporate influence on judicial elections will almost undoubtedly increase dramatically. After all, it's a good investment -- as the mafia knew, buying enough judges was the best insurance policy you could get to make sure you could do business any way you pleased.

It's true that the ability to buy a judge is not completely without limits, as we found in a case called Caperton v. Massey, involving the notorious mining company Massey Energy. Massey had recently been hit with a $50 million verdict in a lawsuit heading for West Virginia's Supreme Court of Appeals, so the company's chief, Don Blankenship, poured $3 million into the campaign of Brent Benjamin, a private attorney running for the first time, for chief justice in 2004. That amount was more than both campaigns spent combined. Benjamin ousted the sitting justice, and when the case reached the high court, Benjamin refused to recuse himself and cast the deciding vote in Massey's favor, tossing out the $50 million award.

When the appeal reached the Supreme Court of the United States, the Court ruled that Benjamin should have recused himself. But what was so remarkable about the decision is that it wasn't 9-0 or 8-1 but 5-4. Justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito -- the Court's conservative bloc -- actually thought it was OK for a judge to get $3 million from a defendant, then rule on that defendant's lawsuit.

And no one was really surprised. In a former era, liberals turned to the judiciary when the legislative process proved incapable of securing fundamental rights like voting and reproductive freedom. In the last couple of years, however, conservatives have increasingly looked to the courts to safeguard the privileges of power and wealth and turn back any victories progressives might achieve. This process really began under Ronald Reagan, who undertook a carefully planned effort to remake the courts in a more conservative image by appointing as many ideologically reliable judges as possible. Outside government, the Federalist Society was formed in 1982 to promote conservative legal ideas and conservative lawyers, while inside Reagan's Justice Department, a cadre of young ideologues worked to bend the system as far to the right as possible. Two of those young lawyers, John Roberts and Samuel Alito, now sit on the Supreme Court, where they have delivered an unending line of business-friendly decisions and overturned one law after another that impedes the privileges of power.

So naturally, when Democrats achieved a decades-old goal of health-insurance reform, Republicans immediately took to the courts, shopping jurisdictions for the most friendly Republican jurists they could find to hear their case. When the Iowa Supreme Court struck down the state's law forbidding gay people from marrying, conservatives ran a recall campaign to remove the judges who ruled in a way they didn't like. If you lose in the political arena, find a judge to give you the victory you were denied; if the courts don't rule how you like, use politics to banish them and install judges more inclined to your beliefs. Some, like former senator and presidential candidate Rick Santorum, even propose to eliminate an entire appeals court if it doesn't issue rulings with which conservatives agree. When we hear that at the invitation of the Koch brothers, bankrollers of the American right, Scalia and Thomas have attended retreats whose purpose is "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it," we are barely surprised.

In Democracy In America, Alexis de Tocqueville noted after his tour of our country in the 1830s that some state constitutions "make the members of the judiciary elective, and they are even subjected to frequent re-elections." Despite his copious praise for so much of the young country, de Tocqueville was unequivocal in his judgment of this particular practice. "I venture to predict," he wrote, "that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself."

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