judicial elections

Esquire's Charles P. Pierce comments that electing judges continues to be a bad idea--especially since the U.S. Supreme Court ruled in Citizens United that the government may not keep corporations or unions from spending money in support of candidates.

The Brennan Center for Justice has documented that $3.5 million in TV and radio ads have been bought so far this year regarding state supreme court elections in 10 states.

The problems include charter-school proponents giving to supreme-court candidates in Washington and Louisiana while lawsuits over the public funding of charter schools are pending. In Montana, one candidate has been criticized for "refusing" to give prison time to child pornographers and giving only a year sentence to man who repeatedly raped a 10-year-old; but those ads don't mention that those sentences involved plea bargains under the discretion of prosectuors.

The Kentucky Supreme Court has ruled that judicial candidates can identify themselves as Republicans or Democrats, but identifying themselves as conservative or liberal "runs afoul of rules to keep politics out of judicial campaigns," The Associated Press' Bruce Schreiner reports.

The court majority further said that a judicial candidate's declaration that he or she is a liberal or a conservative violates the state constitutional requirement that judicial elections be nonpartisan in "'truth and substance.'"

Over $15 million was spent on the most recent election for the Pennsylvania Supreme Court, including $12.2 million in direct campaign contributions and $3.5 million from two independent groups, Associated Press' Christina Almeida Cassidy reports. Almost $10 million was raised by the three Democratic candidates who were ultimately successful in winning seats on the court. Most of that money was raised from labor unions and trial lawyers.

Pennsylvania is not alone in seeing an infusion of contributions to state supreme court races. In 2014, spending on judicial elections tallied at over $34.5 million.

The U.S. Supreme Court ruled, 5-4, Wednesday that states can bar judicial candidates from personally asking for campaign contributions, The Associated Press' Mark Sherman and Sam Hananel report. Chief Justice John Roberts, along with the four liberal members of the court, opined that '"judges are not politicians, even when they come to the bench by way of the ballot. A state may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”'

The dissenting justices would have struck down Florida's ban under the First Amendment.

Even though Roberts was in the majority on the Citizens United decision that liberated corporations and unions from campaign spending limits, the AP reports that "this case could be seen to bring out his role as the leader of the judicial branch, even if he and other appointed federal judges are not affected by the case. Roberts at several points drew a distinction between candidates for judgeships and other offices."

Arkansas Governor Asa Hutchinson has come out in favor of merit selection for judges on the Supreme Court and the Court of Appeals, Arkansas News' John Lyon reports. Hutchison said "'I am willing to give that some gubernatorial support, some gubernatorial initiative to help drive that re-examination to look at how we can better elect our judges and also have the people continue to be involved in that process.”'

Last year, a constitutional amendment to create merit selection for Supreme Court justices failed in a legislative session.

After Wisconsin voters approved a constitutional amendment Tuesday to allow that state's Supreme Court justices to vote on who should lead the court, the current chief justice has filed a lawsuit against the amendment, the Associated Press' Scott Bauer reports.

Before the amendment was approved, the most senior jurist on the Wisconsin Supreme Court filled the chief justice position. Shirley Abrahamson, a liberal member of the court, is expected to be removed as chief justice because there is a four-justice conservative majority.

Abrahamson is arguing that the change should not be applied until after her current term ends in four years or if she leaves before then because otherwise her rights to due process and equal protection would be violated, Bauer reports.

On Tuesday, Justice Ann Walsh Bradley, considered to be one of the two most liberal justices along with Abrahamson, won reelection, Bauer also reports.

The New York Times' Mitch Smith reports that Tuesday's election for the Wisconsin Supreme Court could reshape that judicial body. Justice Ann Walsh Bradley, member of the court's liberal minority, is up for election (Judge James Daley is Bradley's opponent and is supported by Republicans, while she is supported by Democrats), and voters are being asked to approve a constitutional amendment to change how the chief justice is selected. If the amendment is approved, the justices would vote on who should be chief, instead of having the longest-serving member lead the court. Current Chief Justice Shirley S. Abrahamson is considered part of the liberal bloc.

The current chief justice of the Kansas Supreme Court, a former chief justice of the Texas Supreme Court, a former chief justice of the Florida Supreme Court and a former justice on the Montana Supreme Court have both come out against judicial elections in their states.

Kansas Chief Justice Lawton Nuss has come out against plans being considered by legislators to elect justices or have the governor appoint justices instead of keeping the state's 57-year-old merit selection system: "In Kansas, merit selection is a healthy competition that compares side by side the qualifications of numerous applicants. Their names and qualifications are made public, and the selection process itself is open for Kansans to see. Politics and its ever-increasing money play no role. But under the federal solution, only the name of the governor’s appointee is made known." He notes that voters get to directly play a role when voting on whether to retain justices.

In a piece published in the Montana Lawyer, former Montana Supreme Court Justice James C. Nelson says that he has changed his mind about electing judges. The $1.63 million raised in the last election cycle for the Supreme Court shows that going forward judicial elections will be "characterized by huge expenditures of dark money, attack ads, misleading mail stuffers, and the involvement of out of state money and organizations," Nelson writes. He notes that the U.S. Supreme Court's ruling lifting limitations on campaign expenditures by PACs, unions and other groups encourages unqualified attorneys to run for seats on the judiciary because they can play to "out-of-state dark money folks." In addition to changing Montana's constitution to select judges through a merit selection system, Nelson would require attorneys to have a decade of experience practicing in Montana courts.

In a piece published in the Dallas Morning News in January, Wallace B. Jefferson, Texas' former chief justice, and Barbara Pariente, former chief justice of the Florida Supreme Court, criticized the amount of special-interest funding being spent on judicial elections in the wake of the Citizens United ruling. They said judges should be selected by merit: "This method, used by 23 states to select their top judges, gives a nonpartisan commission the responsibility to evaluate the objective qualifications of judicial candidates and make recommendations to the governor for appointment. Some of these systems include retention elections, so that the voters can remove judges who have committed ethical improprieties."

Reuters' Lawrence Hurley reports that the U.S. Supreme Court appeared to be closely divided over a Florida judge's challenge to a law that bars judicial candidates from soliciting campaign contributions. Notably, the case was heard just about five years after the Supreme Court decided Citizens United v. Federal Election Commission.

Justice Anthony Kennedy, who authored the Citizens United opinion, is likely to be the swing vote, Hurley reports. The liberal justices appeared to favor keeping a law that tries to safeguard the judiciary from political influence, while the conservative justices appeared to favor the First Amendment interests tamped down by the law.

Judicial elections often involve campaign ads attacking candidates for being too soft on crime, even though there is a "growing bipartisan consensus that America locks up too many people for too long," The Marshall Project's Christie Thompson reports.

In 2014, there has been at least $13.8 million spent on TV advertising for state supreme court races, according to the Brennan Center for Justice. And the liberal American Constitution Society found that "as more TV campaign advertising aired in judicial election campaigns, elected state supreme court justices became less likely to rule in favor of defendants," Thompson further reports.

The irony is that many spenders on judicial campaign ads like the Koch brothers actually support policies in favor of decriminalization, but the "tough on crime" ads are used because they play on people's fears, Thompson also notes.