MI Conference Series
No. 6 April 18, 2001
Judicial Elections: Past, Present, Future
JUSTICE YOUNG: How should we reflect on the conduct of these elections, now that the smoke has cleared? Have last November’s big money, big media, electoral blitzkriegs undermined the public appeal, or desirability, of judicial elections?
As someone who was the target of some fairly vicious campaign ads, I can honestly say that I have a very personal understanding of how ugly and unsettling some of these election tactics can be. But our republic—and our judiciary—is healthy. And its health is sustained whenever the public is treated to a robust discussion of the issues, no matter how unseemly it may appear to elites who purport to be
concerned about protecting the public from its own naiveté. While it is certainly true that you cannot cram a lot of deep philosophical issues into a 30 second television ad, it is possible, in a general way in a campaign, to raise the public’s consciousness about the difference that judicial philosophy makes. Furthermore, my colleagues and I went to every major newspaper editor in the state and offered to talk about the philosophical issues of our campaign in greater depth. However, what I found interesting and almost invariably true was that few newspaper editors wanted to talk about the substantive issues, rather than the tenor of the campaign ads.
. . . most such reforms are fundamentally rooted in a total distrust of the public and its ability to make astute political judgments.
There is a legitimate concern about the shocking amount of money involved in judicial campaigns in the state of Michigan and in many of the other states. But I believe that we ought to be very, very chary about tinkering around with reforms because, when you scratch the surface of each, what one typically finds is either an effort to trounce First Amendment rights or a covert initiative for incumbency protection. Worst of all, most such reforms are fundamentally rooted in a total distrust of the public and its ability to make astute political judgments.
But I think this distrust is unwarranted. Even with my limited experience as a candidate in electoral politics, I think I can confidently say that the public understands the issues and what is at stake, even if they are not as articulate as our angst-ridden political pundits. The truth is that people do not usually need to invest a lot of time and attention in judicial races in order to make a decision that serves their interests. In Michigan, people are passionately attached to their right to cast their votes in judicial elections largely because they want to reserve the right to remove a jurist who seems to be fundamentally at odds with how they think a judge ought to be functioning and conducting themselves on the bench. In a self-governing society, this is an important political tool.
Now, I don’t know quite how this current controversy concerning judicial selection processes will resolve itself. I simply note that we have electoral mood swings in our polity all the time. I suspect we are on the high end of one swing of the pendulum in judicial elections in terms of their cost and intensity. But I am not fundamentally troubled. Perhaps the elite are troubled, but the public at large is not. And in the final analysis, it is the public’s opinion that matters.
MODERATOR: Thank you. We’re going to open it up for questions from the floor.
AUDIENCE QUESTION: I’m Ken Doyle with the Bureau of National Affairs. I wanted to ask a general question about where people think things are going in the future. There’s been a lot of discussion about the history of the last election but no speculation as to whether or not this trend will continue. Will the Chamber continue its program considering its success in influencing judicial elections?
MR. WOOTTON: Well, I’ll put your question in two parts which I think reflects the fact that we haven’t talked about where we think campaign finance reform in judicial elections may be going. I think it’s too early to tell. A lot of the polling data indicates that the public is in fact very supportive of judicial elections and not at all trusting of the alternatives, which are lawyer dominated merit panel selection systems and the gubernatorial nomination system that mirrors the federal judicial confirmation process.
As far as the Chamber and the business community’s commitment to be involved in judicial elections where they do occur, I think that the experience we had last fall has encouraged everyone to be more active. And, in fact, I think there will be a significant expansion of our level of activity at the Chamber, but we are not the only element of the business community who views the activism of the state judiciary with skepticism and therefore a very important place to become involved.
I don’t think it’s any secret, and someone’s alluded to it, that 80 or 90 percent of tort reform statutes enacted by state legislatures have been struck down by state supreme courts and, in all deference to those who argued those cases, on grounds that in the view of the business community appear to be very spurious. It’s very dangerous to democratic fairness to have these kind of issues vigorously debated in state legislatures, where serious compromises have been made, because that’s the nature of the legislative process, and then to have a relatively unaccountable body of the government say that they don’t find that process sufficiently persuasive and that they’re going to strike it down.
I think that we are, as Justice Young remarked, seeing an extreme swing on the pendulum. But I think it remains to be seen where we are on the pendulum. I think the support for judicial elections may be at a low point and moving towards a high point because of the nature of what’s going on in the judiciary.
AUDIENCE QUESTION: Where is the American Trial Lawyers Association on this pendulum?
MR. PECK: Well, as a national association, we do not participate in state judicial elections. That is a matter for the state trial lawyer associations, which are independent from us. They make their own decisions. They’re involved in the legislative process. Their members individually make decisions on whether to contribute to elections or not. And as far as I can tell, there have been no discussions to change that.
JUSTICE YOUNG: You know, I think this is a little bit like Casablanca where Claude Rains was approached by the Gestapo about gambling in his casino, and he said I’m shocked, shocked that there’s gambling here. Well, I mean, we’re shocked, shocked that there are politics in judicial elections. And I can’t quite understand this except in the context of the Federal appointive system where all the politics are at the front end. That’s why we’ve developed the verb “Bork” to explain the effect of politics on that version of judicial selection, while in an electoral system the impact of politics is delayed for a number of years, until the election. In short, there is an irreducibly political element to any form of judicial selection because judicial selection matters. It matters whether you have a judge who believes his or her responsibilities are expansive or narrower.
And so I think this notion that we’re all embarrassed by the politics associated with the election of judges is the embarrassment of the chattering classes. I don’t find, at least in my tour of the state, that the public is terribly concerned about this. They understand the political nature of the process and they want this. They insist on it even though they know nothing about us, essentially, when you ask them; but the electorate wants the right to vote when they think it counts.
So I don’t see any diminution in voter interest for electing their judges. In fact, in one of the few states that have tried to abolish it, Ohio, the proposal went down in enormous flames. I don’t see any change in that prospect at all. What we’re talking about now is whether we can clean up the knickers, or even the borders of the knickers of this process. Whether we can do that or not, I don’t know.
AUDIENCE QUESTION: My name is Roland Vaughn and I’m from Alabama and involved with what we consider judicial reform from the perspective of the Business Council of Alabama. I think Roger, your paper allows some opportunity for differentiation between candidates. How do you educate the public in a way that they can make an educated vote? How can they understand judicial qualifications? Even in the business community, we had to rely on designated councils to look at the decisions of judges over time. How can the average person do that in a sophisticated way?
In our particular case, we had an authority that set up requirements for judicial campaign practices. In effect you could not, as a judicial candidate ask for money, which makes it difficult to raise money, and you could make little or no comment on the record of any other judicial candidate if he or she were a sitting judge.
That leaves you with your hands tied. How can you, as a candidate, differentiate yourself, whether philosophically or otherwise, from other candidates if you cannot refer to their record? I really would like to either have Roger Warren or Robert Peck comment on how you can differentiate yourself as a candidate in cases where your hands are tied by state oversight committees.
MR. WARREN: I’ll just comment briefly. I don’t want my remarks misinterpreted. I am not advocating throwing out judicial election systems. I’m just advocating informing them, and improving them, and giving voters the information they need to make careful choices. I agree with you that there is a problem with differentiation.
The “Call to Action” describes a number of things that I think would give the voters more information about judicial candidates. If we’re going to entrust this important decision to voters, I think we have to give voters the information they need to make good choices. I think it’s true that voters that now elect judges are not inclined to throw out the election system. They like electing judges. But I don’t think it’s true that they’re satisfied with the current system of justice.
Our own work indicates that voters want more information about these judges. They don’t know anything about the judges on the ballot. The voting rate falls off dramatically when it comes to judges on a ballot. Voters feel they don’t have enough information to make the right kinds of decisions. And so this is an area in which I think there is great public support for more information about judges, not just a 30 second commercial from one or two folks that have a special interest in that position, but broader, more comprehensive information about the candidates, their records, their philosophy—and what they hold out to the people of that state by way of how they are going to serve the people in that state in a judicial position.
MR. PECK: Let me add that I agree with the distinction that Roger made between judicial philosophy and political philosophy, and that it is ethically appropriate to question judicial philosophy, but not to question political philosophy when you’re speaking about judges. Judges should not pre-commit themselves to a particular result in any particular case.
At the same time, given my disagreement about the distinction between traditionalists and activists, and given the historical precedent that Presidents who have appointed judges have frequently been disappointed to discover that they have not been the judges that they thought they were appointing, examining a candidates’ judicial philosophy does not always give you any real answers. Two equally learned judges, who are agreeable in terms of political philosophy and who both claim to be traditionalists, can still come to opposite conclusions in any given case. The same is true of those who might be labeled activists. So judicial philosophy doesn’t tell you much. But the fact is that it tells you a little bit about the process by which they will consider the questions before them.
And frankly, I would always prefer to be in front of a neutral judge than one who’s committed one way or another because I am convinced of the rightness of my cause and I think that I would muster the arguments that would convince him.
AUDIENCE QUESTION: John Ashenfelter with State Farm Insurance. First, negative attack ads did not seem to work very well, at least against incumbents, during the last election cycle. Do they have a future then? And if so, is it only directed at non-incumbents?
My second question is, although there seems to be near unanimous agreement among the panelists that judicial philosophy matters, judicial philosophy is rarely a topic in campaigns, and how can it emerge as a topic of discussion in a campaign if we remove partisan labels?
MODERATOR: Who would like to try the first question? Justice See?
JUSTICE SEE: Let me take this opportunity to say a word generally about partisan elections. First, I think it’s unfortunate that the term partisan is used here. What we are really talking about is party identification. If we were to ask the public whether they wanted their judges to be partisan or nonpartisan, the obvious answer is nonpartisan.
So when we talk about partisan election of judges, we must be careful to indicate that “partisan” labels do not dictate judicial behavior on the bench, that is, that judges will play favorites for Republicans or Democrats. Instead, what we are considering is whether, in the election of judges, we want party labels. Note that in the federal appointment process those party labels do play a role.
No system is perfect. I can think of things to complain about with the election of judges, as I can with the appointment of judges. But on this question, again, I would ask you to think about some things. First, party labels give voters some information about judges. I think, in general, the parties do take different views as to what constitutes proper judicial philosophy. In general, the Democratic party advocates judicial activism, a view of using judges to reform American society. Now, as I am sure Mr. Peck would point out, there are exceptions. We will find Democrats who are strict construction traditionalists and politically conservative Republicans who are judicial activists, but I believe that party affiliation does offer voters information. It is not perfect information, but it is helpful. Therefore, I believe we should retain it. As a rule of thumb, I favor more information over less information.
Let me offer another thought. There was a poll of our Alabama trial court judges a few years ago, and they overwhelmingly thought that judicial elections should be nonpartisan. That doesn’t surprise me. Right after my election, a newspaper reporter asked me, if I had it to do over again, wouldn’t I rather be appointed? I said “Yes.” I would rather not have to go through the rigors of a campaign. But it seems to me that that is the wrong question and that incumbent judges are the wrong people to ask.
The real question is, what is best for the public? As an incumbent, it would be great for me for the election to be nonpartisan. Then if someone wanted to run against me, that challenge would have a hard time building a statewide organization. The challenger would have to go to every one of the 67 counties in Alabama and find someone in that county who is willing to support him and to work on his campaign in that county. He would have to find people willing to contribute the money—and this would have to be done second hand, because judges are prohibited from direct fund raising—that is needed to run campaign ads to encourage voters to vote for him instead of for me.
With partisan labels everyone knows that I am a Republican. If you don’t like what I am doing, if you think I am acting in a way that is contrary to the expectations of the public, you can run a campaign
against me fairly easily. All you have to do is go to the state Democratic Party and say that you want to run against Justice See. They probably will say, “Wonderful.” And you will ask, “What do I need to do?” They will give you a list of the 67 county executive committees, and a schedule of when they meet. You can attend those meetings, tell them what you want to do, and see who is impressed enough with you that they will run your campaign in that county. They will also tell you who normally contributes to Democratic candidates in judicial races.
The real question is, what is best for the public? As an incumbent, it would be great for me for the election to be nonpartisan.
So for me, it would be a lot better for elections to be nonpartisan. But, for the people of Alabama, if they want to exercise a veto, if they want to be able to say, no, we don’t think Justice See is doing the job the way we want it done, then it is better to have partisan judicial elections so that a challenger has a place to go to build an organization to help him mount an effective challenge to an incumbent.
MODERATOR: Would anyone like to comment on the future effectiveness of negative advertising?
MR. WOOTTON: Well, since most of the people were on the receiving end of negative advertisements, I’ll speak to this issue. Number one, I think incumbency is enormously powerful. If we went through all the races in which there was interest last year, the incumbents won much more often than not.
But it’s also true that if an incumbent is not going to win, it’s probably going to be the result of some effort on the part of the challenger to point out the negative aspects of their tenure or their judicial philosophy, or something that will have some kind of resonance with the public.
So I think all the tools of the political process are at work in these races and that they always will be, but that the choices about the messages of campaigns, or how educational campaigns are conducted, will vary from race to race and year to year. Consequently, there is no way an a priori decision can be made about negative ads one way, or the other. Frankly, I have to say that I don’t think there should be. I think the idea that a judicial candidate is somehow off limits from what somebody might describe as a negative ad is probably the goal of some of the reformers, so that there will never be anything that would cast aspersions on sitting justices or even candidates who may become sitting justices. But if you constrain that kind of speech, you are constraining the information the public is going to be given and on which they’re going to base their decision.
MODERATOR: Thank you. Next question.
AUDIENCE QUESTION: I’m Professor Roy Schotland, from Georgetown Law School. Three points. The first and third are some facts on why two things Jim Wootton has said are clearly correct. And the middle one is about partisan versus nonpartisan elections.
Earlier, Mr. Wootton made a statement to the effect that the public prefers elections over other systems. Last year, in Florida, there was a ballot proposition to change the contestable nonpartisan election of trial judges to merit appointments with retention elections, like Florida appellate judges. That ballot proposition was defeated in each judicial circuit, county by county.
The proposition to change to merit selection was defeated in every single judicial district for the upper level trial courts by 2 to 1 and more, and for the county trial judges by 3 to 1 and more. That’s just the latest episode in 20-odd years that reinforces Jim Wootton’s point that the public trusts judicial elections more than any other system. Whether you think they should or shouldn’t do so, those are the facts.
With regards to the second issue, on partisan versus nonpartisan elections, Harold See has made many good points about why we ought to be leery of discarding partisan elections, but here are some other facts to chew on. In 1900, we had 25 states with partisan judicial elections, zero with nonpartisan. Today, we have 16 states that have at least some judges facing partisan elections instead of the 25 from a century ago. Of those 16 states, 9 have all their judges in partisan elections. (And I’m counting Michigan and Ohio despite the nonsense that some people adhere to that those two states have non-partisan elections. Just because the party label isn’t on their ballots doesn’t make them nonpartisan elections, as Justice Young has brought out so eloquently).
On the other hand, while there were no states with nonpartisan elections in 1900, today we have 17 states that have nonpartisan elections for at least some of their judges, and of those 17, 11 elect all their judges in a nonpartisan election. So whatever you think are the merits, the fact is that we have two distinct trends: one, towards preserving judicial elections, and the other for moving from partisan to nonpartisan elections.
One final observation: there’s been almost no mention of the last thing that Mr. Wootton said about the importance of incumbency. The elections aren’t where the action is. Most of the action is in appointments to fill vacancies. In most states, more than half of the judges first come onto the bench via appointments to fill vacancies. Almost no state has any advice and consent role for legislatures in that context, and only 11 states have any kind of screening process for gubernatorial appointments to fill vacancies. So you’ve got most governors putting most people onto the bench, who then run with all the protections of incumbents.
And these protections are incredibly powerful. In Florida last fall there were 182 Florida trial judges up for re-election in contestable nonpartisan elections. Only 17 of those judges were actually opposed in their races. Consequently, 165 incumbent judges faced no opposition at all.