By MARSHA MERCER
Imagine the scene: The chief justice of Iraq is visiting Washington and stops by the Supreme Court for tea with Justice Stephen Breyer and others. As they sip, Breyer and his guests chat about efforts to clean up money in state and local judicial elections in the United States.
The Iraqi listens and finally says, “You know, I don’t think (U.S. administrator L. Paul) Bremer would ever have allowed us to accept corporate money to become a judge in Iraq.” And, he adds, “I think this is what they call anti-corruption.”
They do indeed call it that -- most places around the world.
The story illustrates the awkward position the United States finds itself as the only country in the world that popularly elects judges -- especially after the Supreme Court’s landmark campaign finance decision.
Mary McQueen, president of the National Center for State Courts, recounted the tea conversation from last November at a conference this week on judicial selection. While the world views the United States as the pinnacle of judicial independence, she said, it’s difficult to explain how we maintain impartiality when money is involved in the election of state judges.
Many Americans are worried how, with the ever-escalating cost of electing judges, we can preserve trust in a judiciary that assigns top-dollar punitive awards and sets sensitive social policy on gay marriage, abortion and other issues.
Justice Sandra Day O’Connor, who retired from the nation’s highest court in 2006, helped write the 2003 campaign finance decision the Supreme Court gutted Jan. 21. She has long advocated scrapping judicial elections in favor of a merit-based system of selecting judges.
In Citizens United vs. Federal Election Commission, the Supreme Court struck down barriers to corporations and unions directly contributing money from their own treasuries in elections. The 5 to 4 decision could lead to a troubling infusion of corporate cash in elections.
“The problem of campaign contributions in judicial elections might get considerably worse and quite soon,” O’Connor said at the judicial selection conference at Georgetown University Law Center.
The Constitution ensures an independent federal judiciary by giving judges tenure and a salary that can’t be reduced. The judiciary in the states is another story. Almost all states require some state and local judges to win election either to gain the office or to stay there.
The majority of Americans want to elect judges because people think it keeps judges accountable. Interestingly, though, voters who elect judges are more likely to think judges legislate from the bench, O’Connor said.
And, if you think judges legislate from the bench, you’re willing to invest a lot of money to get the judges you want, she said.
Judicial election costs have skyrocketed. Not until 1980 did the first state judicial election exceed $1 million. In 2004, candidates for an Illinois Supreme Court seat and their supports spent over $9 million, the national record. Last year, a single Supreme Court race in Alabama cost more than $5 million.
President Barack Obama took the unusual step in his State of the Union address Wednesday of scolding the Supreme Court for the Citizens United decision. He said he believes the ruling “will open the floodgates for special interests – including foreign corporations” to spend limitless amounts in campaigns. Justice Samuel Alito, sitting on the second row, shook his head and seemed to mouth the words, “Not true.” Obama urged Congress to pass a bill to correct some of the problems.
Even before the recent ruling, states and legal groups already were scrambling to deal with the flow of campaign cash into judicial elections. North Carolina is exploring public funding of judicial races. Some states want to tighten rules on disclosure requirements. Others want campaign oversight panels and judicial voter pamphlets. Some say that longer terms for judges could help ensure their independence.
O’Connor said the Citizens United decision makes it more important for states to reconsider electing judges at all.
“We can anticipate that labor unions and trial lawyers, for instance, might have the financial means to win one particular state judicial election,” she said. “And maybe tobacco firms and energy companies have enough to win the next one.
“And if both sides unleash their campaign spending monies without restrictions, then I think mutually-assured destruction is the most likely outcome.”
That’s one problem they don’t have in Iraq.
© 2009 Marsha Mercer. All rights reserved.