Ohio Supreme Court Senior Associate Justice Paul E. Pfeifer: ”I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote. . . .”
With all the talk in the news these days about how big money donors influence elections, it’s interesting to consider America’s unique practice of electing judges. In 39 states, the judges are elected to the bench — 89% of our state court judges are elected. A cornerstone of our justice system is having judges who are fair and impartial, and yet our system of electing judges drastically warps that impartiality.
First, there’s the problem of money. Campaign finance laws require candidates to sign off on their donor lists, so everyone – including the judge – knows exactly who gave the judge money and how much. In recent years, judicial campaign financing has skyrocketed, with most of the funding coming from business groups, lawyers, and lobbyists. And how could this enormous spigot of money for electing judges not influence the perception of justice and justice itself? More than three-quarters of voters and 46% of the judges themselves believe that campaign contributions influence judges’ decisions. And of course they do. It’s not hard to imagine: you have a case in front of a judge who is facing an election, and the judge knows whether you contributed to her campaign and if so, exactly how much you were willing to cough up for her (and the judge will also know if the party on the other side of your court case gave a nice, healthy contribution). How fair would that trial feel once you find out that the party you are litigating against (or its lawyer) is the judge’s longstanding, reliable donor? Not surprisingly, a recent study of state supreme court justices found that the more campaign contributions from business interests the justices receive, the more likely they are to vote for business litigants appearing before them in court. For instance, one Ohio Supreme Court Justice ruled in favor of his donors 91% of the time, taking thousands of dollars from the political action committees of companies that had cases in front of him at the time. So it’s not just a perception of bias, it’s a reality.
When electing judges there’s also the reality that judges are simply much harsher during election years. When facing an election, judges feel compelled to appear tough on crime, hoping to avoid the advertisements accusing them of being soft. A study conducted by Loyola Law School and the University of California, Berkeley found that judges gave criminals sentences that were 10% longer when they were about to face re-election. Another study found that more expensive judicial races resulted in more rulings favoring the prosecution. John Oliver nails this issue in a hysterical piece that uses judge commercials to illustrate the point of how paid campaign advertisements influence judicial rulings – it’s well worth the click, if only to ask yourself whether we really want our judiciary degrading and selling themselves in this fashion.
Finally, it’s worth noting that electing judges has become much more politicized in recent years. The system only works if judges are impartial. They’re not supposed to pre-decide issues or favor certain interests over others. But in most states, judges run as the member of a political party and tout certain political values and positions on divisive issues. And, as more and more money pours into this system of electing judges, judges need to align with popular politics and big money donors or find themselves out a job. That’s how justice gets sold to the highest bidder.