MI Conference Series
No. 6 April 18, 2001
Judicial Elections: Past, Present, Future
REACTIONS AND COMMENTARY
MS. PENDELL: I’m going to tell you a little bit about our panel moderator and then he will take over for the panel presentations. Jan Baran is the senior partner in the Washington, D.C. law firm of Wiley, Rein & Fielding, where he heads the firm’s election law and government ethics practice group. He has been named one of D.C.’s top 50 lawyers by Washingtonian magazine.
As a litigator, Mr. Baran has successfully argued First Amendment cases before the Supreme Court of the United States and he has chaired the American Bar Association Committee on Election Law, serves on the ABA Commission on Public Financing of Judicial Campaigns, and has authored numerous articles and the book, “The Election Law Primer for Corporations.”
During the 2000 Florida Presidential vote recount, he worked as a legal consultant and analyst for ABC News and ABCNews.com. In 1981, President Ronald Reagan conferred on Mr. Baran the personal rank of ambassador as chairman of the U.S. delegation to the World Administrative Radio Conference, and he previously served in government on President Bush’s Commission on Federal Ethics Law Reform and as executive assistant to the chairman of the Federal Election Commission.
Mr. Baran was the transition general counsel for the 1988 incoming Bush administration and he then served four years as general counsel of the Republican National Committee. A graduate of Ohio Wesleyan University and Vanderbilt Law School, he was a Patrick Wilson Scholar of law. I turn the program over now to Jan Baran.
MR. JAN BARAN (MODERATOR): Thank you very much Judy.
Listening to Justice Young and his description of the tensions between traditionalists and activists reminds me of a saying. When I moved to this area some 27 years ago, I moved to what is now my adopted state of the Commonwealth of Virginia. And there was a saying that it took three Virginians to change a light bulb: one to replace the bulb with exactly the same type of bulb and two additional Virginians to discuss how good the old light bulb was.
This traditional approach in Virginia continues with our political system. With respect to judicial selection, things are fairly simple. It’s been left up to the Virginia Senate to, basically, select the judges in Virginia, and for some 150 years that was simply a function of the meeting of the Democratic Majority Caucus of the Virginia Senate. That has changed to a Republican Senate.
Also, we have a very different approach to campaign finance regulation. I noted in an article for The Weekly Standard a couple of years ago that Virginia stands in stark contrast to what is more in vogue these days with the regulation of campaign finances. We require only disclosure. There are no contribution limits. We have our elections in an off year. We’re only one of four states to do that in odd-numbered years. Any corporation or trade union may make a contribution in any amount to any candidate as long as it’s disclosed.
One of the ironies of the Virginia system is that we tend to see less money spent for gubernatorial elections than we do for our senatorial elections. We also seem to attract candidates from relatively modest backgrounds who then become elected governors. For example, we had the first, and to date the only, African-American governor of Virginia. We had the son of a football coach, who was then followed by the son of a Richmond butcher.
One of the distinctive features of Virginia politics, of course, is that the governor cannot succeed himself. There are no term limits. You can run as often as you want. You just can’t do it twice in a row. In the 20th century we had only two governors who actually had two terms, and those were separated by some 20 years.
One of the results of all that is that we don’t have independent advocacy groups, we don’t have independent expenditures, and we don’t have the phenomenon of selling bed space in the country’s oldest gubernatorial residence in Richmond. Notwithstanding all of that, Virginia is changing. In addition to being Republican, it’s now the home of America Online Time Warner, and anyone who’s driven the roads in northern Virginia can witness some of the changes that have been spawned by the economic success of the region.
Our distinguished panel is going to comment on the changes that have occurred in judicial campaigns, which were just described eloquently by Justice Young. We are going to proceed in the order in which the panelists appear on our program. Each is going to comment on Justice Young’s remarks for approximately five minutes and then we would like to leave time for questions from the audience.
We will begin with two fellow survivors of statewide judicial election campaigns. The first is Justice Young’s colleague, Justice Clifford W. Taylor.
Justice Taylor first went to the bench in 1992 when he was appointed to the Michigan Court of Appeals. In August of 1997, Governor Engler appointed Justice Taylor to the Michigan Supreme Court. He has therefore survived not only the 2000 electoral contest but also the 1998 one as well, when he first stood for election.
Following him will be Justice Harold See, Jr., of the Alabama Supreme Court. He stood for office in the year 2000 for the post of Chief Justice but is still a justice, not having won the election for Chief Justice. He went to the bench after a long and distinguished career as a law professor at the University of Alabama School of Law.
Following the two justices will be Jim Wootton, whom you heard from briefly earlier. Jim is the President of the U.S. Chamber Institute for Legal Reform and has been with the Institute since January of 1998. He is a graduate of the University of Virginia Law School and therefore is very familiar with the Virginia traditions that I just referred to. He had previously served in government in 1983 as deputy administrator of the Office of Juvenile Justice and Delinquency Prevention at the Department of Justice, and also as Director of Policy Communications and Legislative Affairs at the Legal Services Corporation.
Following Jim is Bob Peck, Senior Director of Legal Affairs and Public Policy Research for the Association of Trial Lawyers of America. His practice consists exclusively of constitutional litigation. I
remember working with Bob when he was previously with the American Bar Association and also national counsel for the ACLU.
. . . the left sees judges as the action arm, or at least an impregnable bastion of defense in support of progressive notions.
We will conclude with former judge Roger Warren, who served on the Sacramento, California bench for 20 years before taking the position of president and chief executive officer of the National Center for State Courts, which he did in March 1996. Judge Warren was one of the conveners of the chief justices who met in Chicago at the end of year 2000 to discuss some of the events that occurred with respect to the November judicial elections.
With that, I would like to recognize Justice Taylor.
JUSTICE CLIFFORD TAYLOR: I’d like to first of all say that it’s always a pleasure to hear Judge Young speak and get it right. And I also want to say that he was a great candidate. You might have noticed there’s a wonderful wit and verve to the man, and it was a great pleasure campaigning with him.
I’d like to supplement just a little bit of what Justice Young said. The debate over the selection of judges is really keyed, I believe, to what role you see the judiciary playing. And it is important to understand that the left and the right in American politics see the judicial role very differently.
First, the left sees judges as the action arm, or at least an impregnable bastion of defense in support of progressive notions. The action arm can be seen in areas such as abortion, religion in the public square, criminal procedure, the right to bear arms, and the death penalty. The impregnable defense phase can be seen when the state supreme courts, as is almost routinely the case, declare unconstitutional any kind of tort reform passed in the states. It can be seen at the federal level when federal term limits are declared off limits. It can be seen when any type of reform to class action lawsuits is attempted.
Second, on the right you have individuals who see judges as aloof from politics, who believe that a judge’s role is to determine the original understanding of the instrument before it, be that a contract, a statute or a constitution.
Third, it is important to understand that in the United States the legal culture is thoroughly and completely controlled by the left. This is true in the law schools. It is true in the American Bar Association. The legal culture, accordingly, is a culture that is hostile to the notions of judicial traditionalists. Thus, and this is important to understand when you’re thinking about judicial selection, blind draws into the country’s legal pool will produce by and large adherents of the left’s view of what a judge should be.
Fourth, the right must seek judges then who are not merely competent but also not of the culture. And this is, I believe, something that is thoroughly misunderstood by folks who do judicial selection both at the state and federal levels. It is simply insufficient for Republican governors when they are appointing people to courts to pick competent lawyers and expect that the job is done. Because it is painfully true, at least from our experience in Michigan, that competent lawyers who do not have a judicial philosophy consistent with judicial traditionalism will in fact be a crushing disappointment in the way that they handle matters before the court. It is almost always the case that they will be products of the liberal legal culture.
Fifth, this split is new between the right and the left. I believe that for 150 or perhaps even 160 years in this country Republicans and Democrats had a similar view as to what judges did and didn’t do. But that has changed. And I think it is important that we understand this. Consequently, the role that folks like Justice Young and Justice Markman and I have had thrust upon us is to attempt to explain the traditionalist philosophy in many, many forums in Michigan and now increasingly across the country.
Let me close by indicating that when, during last year’s campaign, the “Markman, Taylor and Young, Oh No!” ads began appearing on TV, ads modeled on the Wizard of Oz, Justice Markman was in northern Michigan coming out of a supermarket in a little town called Grayling. In the parking lot there were four boys dancing around in a circle, perhaps seven or so years old, and they were chanting, “Markman, Taylor and Young, Oh No!” Of course, they had no idea that Markman was standing right next to them, listening. Astonished, Markman leapt on his cell phone and called me. He said, “What do you think that means?” I said, “I think it means we’re going to win.”
Thank you very much.
JUSTICE HAROLD SEE: Speaking of unintended consequences, I am reminded of one of the many things that was thrown at me during a campaign: the assertion that I had not passed the Alabama bar examination. I had been in practice in Illinois, where I was a member of the Illinois bar. So after I served for a time as a law professor at the University of Alabama, the Alabama Supreme Court admitted me to the Alabama bar on motion. I was not required to take the Alabama bar examination. (Nor, I might add, had many former and then-sitting Alabama Supreme Court justices, because they had graduated from the University of Alabama School of Law at a time when its graduates were not required to take the bar examination.) But the campaign attack ad said, “He never even passed the Alabama bar exam.” Well, after the election I was up in north Alabama. An elderly man in coveralls came up to me and said, “I just wanted to let you know, I voted for you because you aren’t a lawyer.”
Today, I would like to say four things. I am not going to tie them into a single package. I am not going to advocate anything, but I am going to ask you to think about some things that we ordinarily neglect in public discourse on this topic of judicial selection.
First, I will discuss some issues that were covered by my colleagues from Michigan, but my comments will have a slightly different emphasis. The point they have made is that judicial philosophy matters. We frequently hear people say that all judges apply the law, and that, therefore, judicial philosophy really doesn’t matter, and we should not label candidates.
I contend that judicial philosophy is a fundamental constitutional question that should be determined by the public, those who adopted the Constitution.
I identify three judicial philosophies, although the third one can only loosely be called a judicial philosophy.
I will present these judicial philosophies in as neutral a way as I can. My task is made all the more difficult because, with every passing year, we seem to have fewer and fewer neutral terms in our language.
First is judicial conservatism, also referred to as traditionalist legal philosophy. The judicial conservative notion is that the judge’s job is to, as best he can, apply the law. We understand the difficulty in doing that, but it is seen as the fundamental responsibility of a judge.
The second judicial philosophy is judicial activism. I apologize for using this term. When I was debating my opponent in 1996 he commented that the most difficult part of being a judge was when the legislators didn’t do something right and you had to correct them. I referred to him as a judicial activist based on that statement and on his record. He became irate. But I don’t mean the term in a disparaging way. As best I can understand it, a judicial activist philosophy recognizes that the legislature frequently “messes up,” or the executive “messes up,” and when one of these other branches of government doesn’t do what is “right”, it is the right and the responsibility of the judicial branch to correct the other branch by revising the law through “interpretation.”
I do not subscribe to the judicial activist philosophy, because I believe the separation of powers built into the structure of the Constitution denies any judge any unrestrained right to correct legislative “mistakes.” But judicial activism is a judicial philosophy and it seems to me that the public ought to have the right to decide how their officials are going to understand their Constitution. In the case of juges, that means whether we are supposed to apply the law that the legislature has given us, or to change the law if we think the legislature is wrong. The people adopted the Constitution and, ultimately, I believe they should decide fundamental constitutional questions.
The third judicial philosophy, and I here use the term “philosophy” loosely, is judicial pragmatism. Frankly, I think most judges fall into this category. They do not subscribe to a single judicial philosophy. Instead, they look at the question before them and say, well, this course of action seems to produce the right result so I will rule this way in this particular case.
I don’t believe we want judges free of all constraints. Instead, don’t we intend that judges should serve something or someone?
But again it seems to me that the question whether judges should be judicially conservative, judicially activist, or judicially pragmatic is a question that ought to be answered by those who adopted the Constitution. That’s point number one.
The second issue I would like to raise is judicial independence. I am not here trying to prove a point; I am raising a question and hoping you will think about the issue with an open mind.
We hear a lot of talk about judicial independence. The ABA has been looking into the concept for the last couple of years. But I want you to ask yourself, when you hear the term judicial independence, what does it mean: independent from what? Do we mean independent from the people? Do we mean independent from the other branches of government?
I don’t believe we want judges free of all constraints. Instead, don’t we intend that judges should serve something or someone? Therefore, when we talk about judicial independence, isn’t the emphasis in the wrong place? Shouldn’t we be talking about whom or what judges should serve?
Perhaps judges should serve the law. Or perhaps judges should serve the people. Perhaps judges should serve the bar. Or perhaps they should serve some particular ideology. But isn’t that the question? Aren’t we ultimately going to serve something or someone and isn’t the proper question whom or what that should that be? And, again, isn’t that a fundamental question that the people ought to be answering?
The third issue is the defensibility of judicial elections? There have been many attacks on judicial elections, but let me suggest that judicial elections are defensible (1) if a rational public can believe that citizens can judge who should serve as a judge, or (2) if a rational public can choose to retain the power to remove a judge who is out of touch with the citizens’ conception of what a judge should be. I will return to this point without mentioning it expressly.
The fourth and final issue I will address in my comments—and I will be happy to answer questions or react to other thoughts on these topics—is the argument from people who want to reform judicial elections that judicial elections are “different.” Isn’t every kind of election different? Isn’t a municipal election different from a national election? Isn’t the election of a governor different from the election of a public service commissioner or a state representative? Of course. Every kind of election is different in some way from every other kind of election. The question is, what are the implications of those differences for how we should conduct those elections? It is not enough simply to say that judicial elections are different.
I will address two general aspects of how judicial elections are alleged to be different. The first alleged difference is that the judiciary depends on public confidence, that elections undermine public confidence in that institution, and that, therefore, judges should not be elected. Isn’t that true of all government, that it depends on public confidence? If Congress loses the confidence of the public, Congress will not be able to execute its responsibilities. If the President loses public confidence, the Presidency will be undermined. Isn’t the need in a representative democracy for public confidence an argument that can be used against all elections of public officials? In that case, because our government depends on public confidence, it could be argued, we should to appoint everyone from the President on down.
Moreover, the argument that judges should not be elected because citizens cannot be trusted to know things that might cause them to lose confidence in the judiciary, amounts to the notion that the strength of the judiciary depends on public ignorance. I label this the “whited sepulcher theory.” I think that, ultimately, information comes out, but even if the effort to conceal were not doomed to failure any attempt to keep this information from the public reflects a profound lack of confidence in voters.
This paternalistic approach questions the viability of democracy itself by suggesting that the public cannot hear things about their public officials without government collapsing.
The second alleged difference in judicial elections is that judges are not well known; therefore, we cannot have them chosen by election. First, the fact that judges aren’t well known is the reason we have campaigns. And, pardon me for belaboring the obvious, but the same thing is true of almost every candidate who runs for public office. How many people know the names of their public service commissioners? Or state representative? Yes, that may be a problem in a democracy. Yes, we need more information. But I do not see how that singles out the judiciary for special treatment.
I suggested this earlier that the public may just want a veto on incumbents. I think the data will support the notion that, though generally voters will re-elect incumbent judges, they may want to be able to kick out of office a judge who is out of touch with the electorate. And they rely on challengers to call that information to their attention.
I would like for you to consider these thoughts when you think about judicial selection. Thank you.
MR. WOOTTON: I’m just going to run real quickly through what we did last year and use a couple of examples.
We set out at the beginning of the last judicial election process to educate the public about judicial and attorney general races in five states: Alabama, Ohio, Indiana, Michigan, and Mississippi. We researched 26 candidates; we researched what the public wanted from those candidates. We endorsed one attorney general and 14 judicial candidates. We developed eight customized statewide and four customized district-wide public education efforts, and we created some high impact ads.
Here is a sample of the ads we ran in Indiana, Mississippi, and Ohio.
Announcer: What do we really know about Karen Freeman-Wilson?
As a municipal judge, Karen Freeman-Wilson hired a convicted drug dealer to be a drug investigator at taxpayer expense.
As a part time judge, Freeman-Wilson represented two city employees caught dealing drugs from city hall.
Freeman-Wilson even had taxpayers foot an eleven thousand dollar bill for shopping bags featuring her campaign slogan.
Karen Freeman-Wilson—bad judgment for Indiana. [End Video]
Announcer: She’s Kay Cobb and she stands up for us on Mississippi’s Supreme Court.
Kay Cobb believes justice should be swift. That’s why she’s worked to end the judicial backlog.
And Kay Cobb knows justice must be certain. That’s why she’s fought to eliminate endless appeals and ensure that death penalty cases are tried promptly.
At the Bureau of Narcotics she helped punish the drug dealers who victimize our children.
And she brings common sense to the Supreme Court.
Justice Kay Cobb. [End Video]
Announcer: What’s being said about Judge Terry O’Donnell:
“Highly recommended” [Cleveland Bar Association]
“one of Cleveland’s toughest judges” [Cleveland Magazine]
“thoughtful…and respected.” [Plain Dealer]
“a reputation for integrity and intelligence” [Akron Beacon Journal]
And Alice Resnick?
“an unseemly willingness to politicize her office” [Akron Beacon Journal]
“lacks judicial temperament” [Akron Beacon Journal]
“blind to the ethical compromises of taking 78 percent of her contributions from…trial lawyers who get wealthy on settlements affirmed by the Supreme Court.” [Cinncinati Enquirer]
O’Donnell and Resnick—big differences. [End Video]
Announcer: Alice Resnick.
She’s taken over $20,000 from one influential contributor.
On one important vote she cast after that same contributor sent a letter of complaint, Alice Resnick was the only Supreme Court justice to reverse her own vote.
Justice Alice Resnick—voting with her contributors and even changing her vote after they complain. [End Video]
We increased voter awareness of the importance of judicial and attorney general races and of the candidates endorsed by the Chamber, which was a separate activity from the public education campaigns. Ultimately, 12 of the 15 candidates who were endorsed by the Chamber won their elections.
The question I would like to raise in light of our efforts is how free should free speech be in the context of judicial elections? Should judges running for election get special protection from certain types of speech that other candidates do not have? In other words, how are judicial elections different and what are the implications of that difference?
And the particularly tough ad we ran in Ohio was a difficult ad to decide to run, although after a lot of investigation I was convinced that the facts of that ad were correct. Should the public be made aware of the kinds of information we ran in that Ohio ad, the Resnick ad, obviously assuming that the facts in the ad were true?
MR. ROBERT PECK: I’d like to start out by thanking Judy and the organizers of the conference for inviting me. Given my affiliation with ATLA, I’m somewhat the skunk at the garden party. But I do bring a different perspective to this discussion.
Obviously, the nature of the campaign that Justice Young described should give us pause. It should concern us that this is the way that we are conducting judicial campaigns. Those who are disturbed by that campaign and those ads, and the amount of money that now seems to be brought to bear on these campaigns, should be equally concerned about the campaign that was brought against Justice Resnick of the Ohio Supreme Court.
Now, I will disclose that I have a particular interest in this issue. I was the attorney who brought and argued the case that struck down that state’s tort reform statute. And that is the reason for much of the animus against her. I will also disclose that I have never made a contribution in a judicial campaign.
But the ads brought against her, independent ads that topped off at more than $5 million, were as disturbing as this. While Jim Wootton said that he was satisfied that the facts in that particular ad that he showed us were correct, I would say that they were no more correct than the ad that was run against Justice See alleging that he did not pass the Alabama bar. Perhaps both ads were literally correct, but not a fair disclosure of what was really going on.
But I’m not here to comment on that and to say that the pot’s black on all sides. Instead, I want to comment on the theme of Justice Young’s remarks, that judicial philosophy matters, a theme that was echoed by Justice Taylor and Justice See.
Indeed, it does matter. Voters do not vote on the basis of temperament. If I were an opponent of Justice Young, the fact that he went to Harvard and I went to Yale does not tell voters a great deal about the nature of our qualifications to be justices.
The fact is that I think that the dichotomy he sets up, a dichotomy that’s been echoed by other speakers between traditionalists and liberal activists, is a false dichotomy. It doesn’t tell us a great deal about judges. It doesn’t tell us why when legislatures abdicate authority or surpass the authority that the Constitution grants them, judges properly declare those statutes unconstitutional.
Let me start with an example, because Justice Young described a traditionalist judge as essentially a textualist, someone who takes the literal meaning of the law before them and applies it. I think most people would agree that Justice Antonin Scalia is a traditionalist rather than a liberal activist judge, if that is the dichotomy we’re talking about. Yet, in a case called Smith v. United States  , the issue was whether or not the use of a gun as an additional sentencing enhancement factor in a drug trafficking case merited the additional sentence applied in that particular case.
The majority of the Supreme Court said the defendant “used” the gun because he took an unloaded gun and placed it on a scale to weigh against the amount of drugs that were being sold. That was the “use” of a gun that merited an additional sentence. Justice Scalia dissented in that case. He dissented because he thinks that even a textualist is supposed to look at context. And therefore we ought to assume that the use of a gun means the use of a gun for the purposes for which it is normally used. For instance, in his dissent he gave the following example: if you ask someone if they use a cane, you don’t mean do they hang a decorative antique cane on their wall. You mean: do you use a cane as an aid in walking. To make such an assumption was not judicial activism in his view. This was a wise textual approach to deciding whether or not the statute applied in this instance.
So I take issue with whether or not this is a very helpful description of who is a traditional judge and who is an activist judge. And because I litigate the constitutionality of tort reform statutes I acknowledge that what Justice Taylor says is correct, that courts traditionally do strike these statutes down, and I’m very thankful for that—it means that I win my cases—but are those decisions the result of activism on the part of judges? I submit that they are not, and rather than talk about any of my specific cases I will talk about two people who are considered traditional judges on the U.S. Supreme Court: Clarence Thomas and Antonin Scalia.
In a case decided just a few years ago, Feltner v. Columbia Pictures Television, Inc. , Justice Thomas, writing for a unanimous Supreme Court applying the jurisprudence of original intent, which is what almost every state supreme court uses, struck down a cap on damages in a copyright case because juries decided the amount of damages at common law, prior to when the Seventh Amendment was written. The Seventh Amendment constitutionalized that authority within the jury. That is the result that he reached and a unanimous Supreme Court concurred.
In fact, he wrote that if you look at Blackstone, if you look at Lord Coke, if you look at the Courts of Westminster and the colonial courts, all of these legal authorities held that juries determined damages under the common law. That is the right that was secured by the Seventh Amendment. That was the right that was secured by the right to trial provisions in every state constitution.
Also, if you consider the question of who is supposed to make certain kinds of determinations about the mechanics of court operation, often you will find that it has been committed in state constitutions to the supreme court and not to the legislature. In many states the supreme court has exclusive authority to set the rules of procedure and evidence. And any interference with that right by the legislature is considered a nullity by the express words of the Constitution.
In addition, what we find in tort reform traditionally is interference with the verdict and judgment that has been rendered. Here I turn to Justice Scalia. Writing in Plaut v. Spendthrift Farms  , Justice Scalia looked at early colonial history, and the fact that legislatures often sat as general courts as well, issuing decisions and changing verdicts. It was against these abuses that we rebelled and established the concept of judicial independence. He further noted that this was discussed by Alexander Hamilton in The Federalist Papers and that the right of a court to issue a judgment dispositive of the dispute before them is indeed the essence of what is meant by judicial power.
So I would submit that the traditionalist view expressed by Justice Scalia on behalf of the majority in the Supreme Court favors the position that I’ve been taking in these cases. The historical record, Justice Scalia wrote, is that the framers crafted the charter of a judicial department with an express understanding that gives the judiciary the power not merely to rule in cases, but to decide them only subject to review by superior courts.
Now, since I’ve raised the question of judicial independence and Justice See has raised some questions about what judicial independence is supposed to mean, I submit that judicial independence means that judges try to adhere to the rule of law. That is indeed their mandate. And the immunity, the independence that they’re supposed to exert is independence from the political expediencies and the winds that buffet the political branches of government, causing them to make the kinds of compromises that sometimes lead them to ignore the constitutional limitations on their authority.
State constitutions have a unique history, and that history very clearly and very specifically demonstrates that they were written with an eye towards limiting legislative omnipotence, out of a concern that those who have advantages in the political realm will use those advantages to assist themselves in the judicial arena. If there is an aggrandizement of other branches’ authority by the legislature at the expense of the judiciary, if there is a trampling on the constitutional rights of the people, then the courts are supposed to act as a bulwark to protect those rights and strike down unconstitutional acts of the legislature.
State constitutions have a unique history, and that history very clearly and very specifically demonstrates that they were written with an eye towards limiting legislative omnipotence . . .
MR. ROGER WARREN: Good morning, everyone.
I think I take a different view than many here. I’m not sure whether my colleagues here at the podium feel that the kinds of elections that occurred in Ohio, Michigan and Alabama were well conducted or not, or were justified in being conducted in the way that they were.
For myself, I feel that the way we’re currently conducting judicial elections substantially undermines the appearance of impartiality of the American judiciary. I agree with Justice Young and all of the other speakers here that judicial philosophy matters. I submit that it has always mattered. The American common law judicial system has always placed more responsibility on the third branch of government and on the American jury than any other court system in history. That’s why it matters. What courts do matters. That’s why it’s important that courts remain impartial and appear to be impartial to the people that they serve.
The way that we are currently conducting judicial election campaigns undermines the public’s confidence in those institutions. A poll that we did at the National Center indicated that 81 percent of the American public feels that judges’ decisions are influenced by political considerations. 78 percent said they felt that elected judges are influenced in their judicial decision-making by the need to raise campaign funds.
I also agree with Justice Young that interest groups are increasingly national, increasingly blatant in their efforts to influence judicial decisions and the judicial election process on a wider and wider variety of issues, and bring increasing amounts of money into judicial election campaigns. I also agree with him that it is distressing that interest groups look to the courts as an alternative to the political branches of government for seeking public policy changes.
Although “judicial” philosophy matters, I submit to you that “political” philosophy should not, that is, the substantive positions that citizens take on various public policy issues. It’s wrong for a judge to commit himself or herself to an outcome on any particular issue that’s going to come before the court. I submit that it’s also wrong for interest groups to seek to elect judges by portraying them as pre-committed to outcomes on public policy issues.
The advertisements that we have seen in some of these states undermine the public’s trust and confidence in the judicial system. We’ve seen some of the ads here—at home I watched about 25 ads that were run in Michigan. I have a lot of trouble distinguishing between the ads run by the Democratic Party and the ads run by the Republican Party, or the ads run by the Michigan Chamber of Commerce.
We’ve seen here some of the Democratic Party ads. Some of the Republican Party ads were referred to by the Detroit Free Press as the most brutal attack ads in Michigan history. Ads run by the Michigan Chamber of Commerce tell voters that judges take sides and on that basis they should take sides, too. And they should elect judges that are pre-committed to some particular point of view, or should not elect judges that are pre-committed to some other particular point of view.
I think the road down which we are going is wrong. I think it’s wrong not only because it doesn’t go anywhere. Interest groups will put more and more money into judicial campaigns, and interest groups that take opposite positions on those public policy issues will then follow suit. Ultimately, this approach i
s not going to get us anywhere.
There are 30,000 state court judges in America, with millions of cases filed every year. Ninety-eight percent of all the litigation in this country goes through the state courts.
More importantly, though, I think it comes down to values. I think it comes down to what you think is more important. I submit to you that in the long run it is more important in this country to have an impartial judiciary, where any litigant can walk into court and expect that his or her case is going to be decided by a judge based on the law and the facts without being worried that that judge made up his or her mind as to how that case should be decided before even meeting the litigants, or by a judge that committed himself or herself to how he or she would rule on such a case if elected.
I think an impartial judiciary is more important than the particular outcomes in a handful of judicial cases across this country. There are 30,000 state court judges in America, with millions of cases filed every year. Ninety-eight percent of all the litigation in this country goes through the state courts. And yet we’re talking here basically about a handful of highly visible cases of great importance to some special interests.
I’m not the only one who’s distressed by some of these judicial elections. Many of the chief justices in the states in which these campaigns are being conducted are also concerned, as well as legislators and others in those states. Few of these people are advocating getting rid of judicial elections. They are all aware that there is very little momentum for getting rid of judicial elections. Eighty-seven percent of all the judges in state courts (appellate judges and trial judges) are elected one way or another.
But these folks gathered in Chicago in December of last year, teams from the most populous 17 states with judicial elections, representing more than three quarters of the American people, teams led by the chief justices of those states, to see whether there wasn’t something that could be done to reform judicial election practices. And they issued a “Call to Action” with several very specific recommendations for reform.
I think that if some of these reforms had been in place— and most of these reforms could be accomplished without constitutional or even statutory change by courts and volunteer groups themselves— the kinds of campaigns we witnessed may have looked more palatable.
For example, the first recommendation of the “Call to Action” is that judicial elections, whether direct or retention, should be conducted in a non-partisan format. I don’t think ultimately people should be electing judges because they’re Republicans or Democrats. Once you do that, you automatically politicize the election because the parties have public policy positions.
Another recommendation was that a judge appointed to fill a vacant judicial position should serve a substantial period in office before the initial election so the judge has a record that voters can look at. If Michigan had had a provision like this in place, the circumstances that occurred there may have been circumvented. Neither Markman, Taylor, nor Young, would have ended up on a ballot within a year or two of taking the bench.
The “Call to Action” also proposes that non-governmental monitoring groups be established to encourage fair and ethical judicial campaigns. The Ohio State Bar Association, for example, and other groups in other states, spoke out about some of these campaign advertisements. I’m not necessarily advocating greater restrictions or regulation of campaign speech, or campaign advertisements. In these states the people have a right to elect their judges. But people should be given relevant information so they can make informed choices.
The antidote, I think, to misleading advertisements is telling the people the truth about judicial candidates through accurate and objective information. Non-governmental monitoring groups can help assure the public that paid advertisements in judicial election campaigns are accurate and not misleading.
Lastly, state and local governments should prepare and disseminate judicial candidate voter guides through print and electronic means to all registered voters.
Now that proposals like these are on the table, perhaps it is time for a symposium to be held to look at whether or not there are things that can be done, consistent with the First Amendment rights of all of the parties involved, to require better disclosure of the campaign contributions that fund the various political advertisements so that the voters can weigh the credibility of the advertisements that they’re seeing.
So I heartily recommend the “Call to Action” document to you. I think it contains healthy recommendations that would help to diminish the extent to which there is a growing and unhealthy dependence of judges on interest groups to get elected and interest groups on judges to carry out their political agendas. 
MODERATOR: Thank you all for your comments. Before allowing questions from the floor, I think it would be appropriate to recognize Justice Young for a few of minutes of rebuttal comments.