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MI Conference Series
No. 6  April 18, 2001


Judicial Elections: Past, Present, Future

Panel 1
Reflections of a Survivor of State Judicial Election Warfare

  • Justice Robert Young, Michigan Supreme Court
  • Justice Clifford Taylor, Michigan Supreme Court
  • Justice Harold See, Alabama Supreme Court
  • Mr. Robert Peck, Senior Director of Legal Affairs, American Trial Lawyers Association
  • Mr. Roger Warren, President, National Center for State Courts

JUSTICE ROBERT YOUNG: I would, actually, like to extend my gratitude to the Center for Legal Policy at the Manhattan Institute and the U.S. Chamber Institute for Legal Reform for sponsoring this forum on state judicial elections. And I want to especially thank Judy for getting me involved in a discussion that, just a few months ago, I didn’t think I had any stomach for.

After an acrimonious ten-month statewide campaign, my instinct was, frankly, to stay close to home and tucked into the fetal position. So the fact that I would leave Michigan, much less to come to Washington and give a speech about an event from which I am still recovering, is a testament to Judy’s persuasiveness.

I have to admit that one inducement for my being here today is that Judy promised that I would speak before my colleague, Justice Taylor. And I always enjoy speaking before Justice Taylor because I found that on the campaign trail when our speaking roles were reversed he would steal without compunction my best lines and pithiest insights. And I’m especially happy today that he’s lost his voice so that he can’t even rebut.

In any event, I hope that the discussion panel to follow will prove to be a lively one and I’ve interlarded my remarks with what I hope will be enough provocative philosophical issues to stimulate further discussion.

Let me start with the national context. Thirty years ago there was almost no media coverage of state judicial campaigns, and certainly there was no national interest in them. Frankly, there was not much on which to report during that period. Judicial races of the era were, as Judy suggested, largely quiet, decorous affairs where the candidates politely presented their credentials to various civic groups and lawyers. Except in the very unusual campaign, the fraction of voters who even bothered to cast a ballot in judicial races generally returned the incumbents to office and then everyone went back to sleep.

However, last fall, Alabama, Michigan, Mississippi, Ohio and several other states were the staging grounds for breathtakingly expensive, brutal, and hard-fought state supreme court races. Even the venerable New York Times and The Wall Street Journal deigned to feature stories and editorials on the Michigan and Ohio state supreme court races.

There was a sense during this campaign season that something new was afoot in judicial races. My quick Internet review of newspaper accounts of last year’s state supreme court races across the country reveals, first, a nearly universal editorial hue and cry over the amount of campaign funds raised and spent by the candidates themselves and by independent advocacy campaign groups; and, second, a high-pitched sustained whine about the awful tenor of these campaigns.

In short, the kind of bare-knuckle judicial campaigns that first debuted in Texas and Alabama a decade ago have now metastasized into a broader array of states. It would appear from the various newspaper articles that I have reviewed that there is now universal agreement, at least among those who own and write for newspapers and other political cognoscenti, that judicial elections have simply gotten out of hand and that some other method of judicial selection must be found.

Instead of regaling you with war stories of the traumas that I recently survived as a successful candidate to retain my seat on the Michigan Supreme Court, I would like to ask and try to answer one question: Why, after decades of quiescence, have state judicial campaigns become such fractious, expensive, but apparently interesting, political affairs?

. . . for the past 40 years or so the courts at the state and federal levels have transformed themselves into “auxiliary legislatures.”

The simple answer, I think, is that to one extent or another enough people now recognize that judicial philosophy matters. And judicial philosophy matters precisely because for the past 40 years or so the courts at the state and federal levels have transformed themselves into “auxiliary legislatures.” Courts have become a new and previously unmonitored source of social and political policymaking. There has been a belated but growing public awareness that the courts and not the legislatures are in control of the important social issues of American life.

This transformation of the judicial branch is so complete that my colleague and good friend on the Michigan Supreme Court Justice Clifford Taylor often remarks that more public policy is determined on the average Monday in June by the U.S. Supreme Court when it issues its decisions than by Congress during it’s entire session.

What has happened during this period is that the judicial traditionalists, those who, like me, believe that judges are constrained to apply the actual text of the Constitution and statutes to the particular fact patterns in the cases before them have been eclipsed by judicial activists who believe that judges should serve as counter-majoritarian hedges against legislative actions that they believe insufficiently just.

This debate between judicial activists and judicial traditionalists was framed as follows by the late Chief Justice Walter Schaeffer of the Illinois Supreme Court. Please note the palpable condescension in his statement: “If I were to attempt to generalize, as indeed I should not, I should say that most depends upon the judge’s unspoken notion as to the function of his court. If he views the role of the court as a passive one, he will be willing to delegate the responsibility for change and he will not greatly care whether the delegated authority is exercised or not. If he views the court as an instrument of society designed to reflect in its decisions the morality of the community, he will be more likely to look precedent in the teeth and to measure it against the ideals and the aspirations of the time.”[1

I was not aware that the Constitution “delegated” to judges the authority to treat the court as a “change agent” reflecting the “aspirations of the time.” It is also worth noting that Justice Schaeffer refers to the judge’s “unspoken” notions rather than the text of our Constitution and the structure of government it established as the central or critical determinant as to whether a judge should be an activist or a traditionalist.

Notwithstanding, the late Chief Justice correctly points out that this debate among judges is fundamentally one about the role of the judiciary in a constitutional republican form of government. It is my belief that the judicial culture of the last 40 years has fully embraced judicial activism, a philosophy that I believe is fundamentally elitist and which is unquestionably founded on the belief that we judges, being more intelligent and better educated than the rabble who are elected to our legislatures, are in a superior position to make refined social policy judgments about the critical questions of the day.

Indeed, any cursory review of the most contentious issues of the day reveals that such subjects as abortion, gun control, gay rights, school choice, the expression of religion in public places, attempted suicide, tort reform and many, many others are being decided not in our legislatures but in our courts.

As we look around today, I think the framers of our Constitution would be baffled, if not horrified, to learn that our courts, not our legislatures, were deciding such fundamental questions as these on bases that some would suggest are simply contrived constitutional grounds that have no link to the text of our Constitution. And it’s worth noting and underscoring that resort to the courts is one of the cheapest political campaigns one can wage. Instead of having to convince a majority of one’s state legislature, the governor, and the constituencies that they represent, a political litigant need only convince one trial judge, two judges on the court of appeals and a majority of the state supreme court. The same is true, of course, at the federal level.

And it’s worth noting . . . that resort to the courts is one of the cheapest political campaigns one can wage.

This phenomenon represents nothing short of a usurpation of political power by the judiciary. This is a dangerous threat to our constitutional framework that, with limited exceptions specifically enumerated in our Bill of Rights, respects the peoples’ right of self-governance, to make their laws by majoritarian political processes, namely through a legislature.

I also submit that the judiciary is an institutionally incompetent vehicle for making particularly sound social and public policy. Because they are specifically designed to create policy, it is entirely desirable that public and social policy be made by the political branch of the government, the executive and legislative branches rather than the judiciary. The political branches are designed for public debate, discussion and compromise. The judicial branch is not.

When one has a hot political issue, one can gather up like-minded citizens and storm the state capital. However, one risks that equally dedicated citizens of opposing values and views will challenge that effort. But this is the nature of the majoritarian political process.

In contrast, the judiciary process, though public in name, is private in its essence. The public cannot broadly petition a court to urge it to reach a particular result in a particular case. And if the public were to attempt to do so the court is obligated to rebuff such importuning.

Further, a court must consider issues largely as they are framed by the litigants, who typically do so issues in terms that serve their vested interest, which is to win that particular case.

Finally, the legislature is free to experiment on policy questions, to try one thing and then another, to reach a result satisfactory to the public at large. When the legislature makes a mistake in policy, it simply amends the law. When a court makes a mistake in public policy and does so on constitutional grounds, its error can persist for generations.

However troubled one may be about this trend, we as a society have become its enablers. Political activists on the left and right of the political spectrum have been guilty of resorting to the courts as a means of circumventing the majoritarian political process. So if you lose in the legislature, “On to the court!” has been the rallying cry and strategy of far too many political activists over the last several decades.

It is the very fact that the activist judicial philosophy I have described has encouraged the expansion of judicial policy-making into such a broad range of policy issues that has in turn spawned a corresponding growth in interest group involvement in judicial campaigns. Now, as never before, it simply matters who wears a black robe if one’s goal is to insure that one can achieve political results in the courts. And people are organizing politically in response to this reality.

I’m indebted to Professor Anthony Champagne of the University of Texas for his monograph on interest group politics and state judicial elections that he prepared for the recent National Center for State Courts Summit on Improving Judicial Selection Processes.[2]  Professor Champagne notes the following national trends in judicial races:

  1. Interest groups have had a long history of involvement in judicial selection.
  2. In judicial elections interest groups can and do play important roles in assisting candidates communicate with and mobilize voters.
  3. Over time, the range of interest groups involved in judicial races has broadened from a small cadre of lawyer and law enforcement groups to embrace those reflecting many different ideological interests.
  4. More recently, interest groups involved in judicial elections have become interconnected and increasingly national in scope.
  5. The literature on such interest groups recognizes that they have become involved in judicial campaigns in an attempt to influence courts and they do so for three primary reasons:
    • Such groups believe they need to counterbalance the influence of other groups;
    • Interest groups wish to influence judges to incorporate their political views into the law; and
    • They wish to hedge their bets in the event they fail to persuade the executive and legislative branches to enact their policy preferences.

Finally, and most importantly for my purposes here, Professor Champagne observed that interest groups today “often draw no distinction between achieving their goals through the courts or in the political process.”

It’s my belief that the trends of judicial interest group politics that Professor Champagne describes correspond precisely with the judicial branch’s increasing willingness to enter into the political arena and become the political arbiter of policy questions that have historically been the province of majoritarian and political processes. However, a development of more recent and perhaps incendiary character has been the emergence of a small but growing cadre of judicial traditionalist appointees and candidates who challenge the hegemony of the judicial activist regime. These traditionalists, such as myself, are the flinty jurists who believe that they are constitutionally constrained to interpret the laws, not make them.

I can tell you from personal experience that there is no natural interest group constituency for judicial traditionalists because traditionalists reject the activist view that courts should engage in politics by another name.

I believe that the arrival of judicial traditionalist appointees and candidates for office has encouraged new interest groups to become involved in judicial elections, and also unsettled established interest groups such as lawyers, which have traditionally been involved, to become anxious to protect their suzerainty in judicial elections. In many states, the arrival of judicial traditionalists has created a more competitive and intense environment within which judicial candidates had to function.

Now let me turn to Michigan. Michigan has followed the national trends I have just outlined. Last year we experienced the most expensive judicial campaign in state history, possibly one of the most expensive in the nation’s history. Let me give you some background on the events that led to the 2000 judicial extravaganza in my state.

The Michigan Supreme Court consists of seven Justices. Although Michigan Justices run statewide on a non-partisan ballot, they are nominated by the political parties. Inasmuch as voters have very little basis upon which to select among supreme court candidates, it appears that the theory for this arrangement is that the political parties would select a higher caliber of candidates for the supreme court than might be selected by the voters in a statewide primary. In any event, by constitutional provision incumbent candidates enjoy one significant advantage over their challengers: they appear on the ballot, the non-partisan part of the ballot, designated as “Justice of the Supreme Court.”

For the past 40 years, politically liberal judicial activists have dominated the Michigan Supreme Court. Beginning in 1998 and continuing through 1999, four of its seven justices retired or resigned from the court. Each was replaced by a judicial traditionalist. These changes shifted the philosophical center of the court and engendered enormous anxiety among those who had profited from having a court traditionally willing, frankly, to legislate.

The interest group thrown into deepest agitation by these personnel changes was the very powerful and very rich plaintiff personal injury bar, which is known more simply in Michigan as the trial lawyers. They, unlike others in society, are investors in the litigation process because they earn as fees a third of whatever verdicts or settlements they can achieve. As such, trial lawyers have a direct and ongoing pecuniary interest in who becomes and remains a judge in Michigan.

Until the late 1990’s, beyond nominating candidates for the court, political parties played a relatively modest role in state supreme court campaigns. The parties provided only token financial assistance and almost no organizational support to their nominees. Campaigns rarely raised as much as $200,000 and such funds as were raised were collected almost exclusively from members of the bar.

In 1994 few Michigan businesses or other non-lawyer interest groups made any kind of financial contributions to judicial campaigns. Until recently it was not contemplated that any supreme court

The interest group thrown into deepest agitation by these personnel changes was the very powerful and very rich plaintiff personal injury bar . . .

candidate would attempt to buy radio or television media and such campaign funds as were expended were used to buy things like lawn signs, bumper stickers and other similar campaign paraphernalia.

In keeping with these longstanding traditions, as late as 1994 Justice Weaver, the successful non-incumbent candidate who was nominated by the Republican Party, beat a field of three male candidates. She raised the princely sum of $187,000. Following that election it was discovered from the campaign finance reports that one of the failed Democratic nominees had raised the unprecedented sum of more than half a million dollars, almost all of it in contributions from the trial lawyers.

Now, you may not find it surprising to learn that that candidate campaigned stating that he favored people over “corporate interests.” While this 1994 Democratic nominee for the Supreme Court failed in his effort, the nature of the explicit anti-business campaign that he waged and the source of his huge campaign fund caused the business community to reassess its lack of involvement in judicial campaigns.

Contemporaneous with that is an article from Inside Michigan Politics that picked up on the fact that a secretary in the largest plaintiff personal injury firm contributed more funds on her own than did all of the major corporations in Michigan at the time that made any contribution. More than General Motors, more than Upjohn, Consumers Power, AAA, and Dow Chemical. Now, I believe that’s because at that personal injury firm the secretaries are especially civically minded.

But this article pointed out that the business community had been completely asleep at the switch and that the interest groups that were actively involved were the trial lawyers, the Democratic Party, and state labor organizations.

Consequently, the Michigan Chamber of Commerce and other business groups began an aggressive education effort to increase the business community’s awareness of how the courts affect business climate issues. Various business groups formed and funded the Michigan Lawsuit Abuse Watch [M-LAW], an unabashedly pro-business watchdog organization that purports to evaluate judges’ rulings on business issues, educate the public on judicial topics, and run issue advocacy ads on radio and television. More importantly, the business community, with the leadership of the Michigan Chamber, vowed never again to let the trial lawyers and their allies have a financial advantage in supporting Supreme Court candidates.

The first race in which the business community attempted to become a major player in judicial campaigns was the 1998 race. In 1998 two judicial traditionalists, both Republican nominees, including Justice Taylor, then the incumbent, were on the ballot and opposed by two politically liberal activist Democratic nominees. The Democratic nominees were supported by the usual coalition: the Democratic Party, trial lawyers, and major labor organizations. Both traditionalists, with the financial backing of business groups and the support of law enforcement and social conservative interest groups won, bringing the court to a 4-3 liberal activist majority.

One of the traditional candidates raised more than a million dollars, the first time this had occurred in Michigan history and Justice Taylor raised just under a million. Their opponents raised somewhat less but had different in kind contributions.

The success of the 1998 effort caused the leaders of the trial lawyers to claim that the business community was attempting to buy the court. The irony of this claim was not lost on anyone but the media that gave it credence. In December 1998 the unexpected happened. A justice who had been a Democratic nominee resigned from the court and Governor Engler appointed me. This resulted in a shift to the court from a 4-3 activist majority to a 4-3 traditionalist majority, the first in 40 years.

In 1999 a Republican-nominated justice regarded as a swing vote retired and the Governor appointed Justice Steven Markman. His appointment created a 5-2 traditionalist philosophy majority and spawned open manifestations of abject terror among the trial lawyers and their allies.

Under ordinary circumstances, only one justice, Justice Taylor, would have been on the ballot in 2000 because his term expired that year. However, because our state constitution requires that every judicial appointee stand for an election at the next general election in order to serve the unexpired term to which they are appointed, in 2000 Justice Taylor, Justice Markman and I, all judicial traditionalists, were on the ballot. This arrangement meant the possibility of defeating two of the three of us and replacing us with politically liberal judicial activists who could change back the philosophical majority of the court. The fact that the court’s philosophical majority hung in the balance energized virtually any political interest group that believed that control of the court’s majority philosophy was important.

Because my appointment changed the philosophical balance of the court, I knew when I was appointed that I faced a difficult campaign ahead. However, nothing in my most paranoid ravings prepared me for the sheer viciousness of the election campaign.

The three incumbents raised slightly more than $1 million each. One Democrat nominated challenger also raised more than a million. The other two came very close. Contrary to the Democratic party’s consistent assertion that our campaigns were captives of “big business interests”, in my campaign there were a total of 4,094 contributors, 68 percent of which gave $100 or less. 27 percent gave $1,000 or less, and one-one hundredth of my contributors gave between $1,000 and the maximum contribution allowed under Michigan election law. Contributors to Justice Markman and Taylor’s campaigns showed similar patterns.

Apart from the fact that $1 million became the threshold for a credible Michigan State Supreme Court race in 2000, what was even more unprecedented were the huge campaign expenditures made by independent campaigns. Apart from the roughly $6 million spent by the six principal candidates, approximately an additional $10 to $12 million in expenditures were made by these independent campaigns.

In a further break with tradition, both parties spent heavily in independent campaigns to support their respective supreme court nominees. They also invested heavily in get out the vote campaigns that, for the first time, featured judicial candidates who the voters had to seek out on a separate non-partisan part of the ballot.

The Democratic Party’s effort, financed almost exclusively by the trial lawyers, began attack ads on the three incumbents in July. Now, that was more than a month before either of the parties nominated candidates for the supreme court. The Republican Party later responded in kind with attack ads directed at the Democratic nominees. Other attack ads were sponsored by non-party affiliated independent campaigns.

Needless to say, no candidate was legally able to direct the activities of these independent efforts, even when we felt that these independent ads were “off-message” or, frankly damaging to our own campaigns. There was more media attention given both in the state of Michigan and nationally to these Supreme Court races than any other prior Michigan judicial race.

As far as I can tell, none of this enormous amount of money, extraordinary effort, and attention mattered much. There was no detectable change in the percentage of voters who voted in the non-partisan Supreme Court races. The three incumbents, undoubtedly aided by the incumbency designation, all won handily by at least a ten-percentage point margin.

That ends my formal remarks and I look forward to the panel discussion to follow. Thank you.

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Center for Legal Policy.

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MICS 6 PDF (793 kb)

SUMMARY:
In some states in recent years, judicial elections have become political contests of the first order: high profile, expensive, and acrimonious. As a result, the CLP and the U.S. Chamber of Commerce Institute for Legal Reform convened a conference of state supreme court justices, academics, and representatives from the American Bar Association to discuss the trends fueling this change and the future of judicial elections.  This transcript is essential reading for anyone interested in the growing debate over judicial ideology at both the state and federal levels.

TABLE OF CONTENTS:

Introduction: Judicial Elections: A Historical Perspective

Ms. Judyth Pendell, Director, Center for Legal Policy at the Manhattan Institute

Panel One: Reflections of a Survivor of State Judicial Election Warfare

Justice Robert Young, Michigan Supreme Court

Reactions and Commentary

Panelists:

Mr. Jan Baran (Moderator), Wiley, Rein & Fielding

Justice Clifford Taylor, Michigan Supreme Court

Justice Harold See, Alabama Supreme Court

Mr. Jim Wootton, President, U.S. Chamber Institute for Legal Reform

Mr. Robert Peck, Senior Director of Legal Affairs, American Trial Lawyers Association

Mr. Roger Warren, President, National Center for State Courts

Rebuttal

Justice Robert Young, Michigan Supreme Court

Panel Two: The Future of Judicial Elections

Panelists:

Mr. Thomas Easton (Moderator), Senior Correspondent, The Economist

Mr. Dudley Oldham, Fulbright & Jaworski, Member, ABA Select Committee on the Independence of the Judiciary

Professor Michael DeBow, Professor of Law, Samford University Law School

Professor Clayton Gillette, Professor of Law, New York University Law School

Ms. Deborah Goldberg, Deputy Director, Democracy Center, Brennan Center for Justice

Notes

Sponsored by:
Center for Legal Policy at The Manhattan Institute
U.S. Chamber of Commerce Institute for Legal Reform

 


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