In a new study published by the Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics, researchers found that campaign fundraising for judicial elections has skyrocketed over the past decade. In the 20 states that held partisan elections for the state Supreme Court in the previous decade, candidates raised a total $153.8 million for their campaigns.
The problem is twofold. First, electing judges runs counter to the American idea of an independent judiciary; elections require fundraising, and it's extremely difficult for a judge to appear impartial if -- as a candidate -- he must appeal to special interests and outside groups for cash and support. Moreover, appearance aside, fundraising influences judicial decisions; donors can pressure judges to support certain rulings in the same way that they pressure legislators to support certain legislation. The difference, of course, is that while legislators are tasked with reflecting their constituencies, judges are tasked with the very different job of adjudicating the law. Additionally, election-year pressure can lead judges to alter their decisions; in a Pennsylvania study, researchers found that all judges increase their sentences in election years, "resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period."
But even if you could insulate elected judges from campaign pressures, you would still have to deal with the fact that judicial elections just aren't that important to most voters. To most voters, judicial elections -- even high-profile elections for state Supreme Court seats -- are a blip on the display, at least compared to congressional and presidential elections. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don't have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and few barriers to bad behavior; as the study details, campaign donors can donate huge sums of money without attracting much attention from voters or officials.
In the end, the study's authors look approvingly at growing support for public financing in judicial races, but a better solution would be to just remove state judiciaries from direct involvement in elections. The idea of elected judges is nice and Jacksonian, but it's incompatible with our ideas about judicial fairness and independence. Either we stop electing judges, or we just accept the fact that elected judges will look out for their constituents as much as they will apply the law.
-- Jamelle Bouie
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