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Judiciary

The Politicizing Of American Jurisprudence

An old saying goes, "A judge is a lawyer who knew a governor (or senator or president)." The inference is unavoidable: judges are political creatures. From many of the nation's law professors to leading members of its foremost bar association, some legal experts think this assertion is regrettably all too true.

Only federal judges and a handful of state judges are appointed for life, barring IMPEACHMENT. In all other states and in local governments, most judges are elected by popular vote for a specific term. Voters tend to elect persons who share their views. The same is true for most gubernatorial appointments, although in many states this tendency is tempered by senatorial confirmation. Inescapably, the development of platforms that represent the most popular, prevailing, or promising views is a political process.

In the words of John Adams's Massachusetts constitution, it has always been the desire to make judges "as free, impartial and independent as the lot of humanity will admit." In a political system where party politics are defined by social issues and where JURISPRUDENCE affects those issues, however, party alignment of judges seems inevitable, either by default or by declaration. The extent is arguable, but few would deny that judges assume the bench based on how others perceive they will run the court: conservatively or liberally.

Ostensible checks and balances exist, of course. All judges are expected to follow ethical standards requiring disinterested and unbiased opinions, which most do. Most states have a CODE OF JUDICIAL CONDUCT and/or ethics for this purpose, generally fashioned from that of the AMERICAN BAR ASSOCIATION (ABA). These codes proscribe many instances of campaign conduct for prospective and current judges. Judges cannot personally solicit or accept campaign funds and often are prohibited from identifying themselves with any political party. Typically, they must run on a non-partisan ticket.

But nothing prevents POLITICAL ACTION COMMITTEES (PACs) from making campaign contributions to judges. Some scoff at the imposition of limits. "If PACs are limited, people go out and create more PACs," explained Dick Wilcox, president of the Business and Industry Political Education Committee in Mississippi. "If wealthy individuals are restricted, they give money to their secretaries, wives, or children to contribute." Contributions add up: Michigan spent $16 million on judicial elections in 2000 alone. In Georgia in 2002, races for two Supreme Court seats garnered more than $700,000.

Electing judges, however, is unnecessary. As an alternative, some point to the pioneering Missouri system. Under this system a governor appoints all state trial and appellate judges with the advice and consent of the legislature. Still another variation seeks to further depoliticize such choices by requiring a governor to select among nominees submitted by a selection panel or special nominating committee.

Support for reform is growing. In Michigan, Senator Ken Sikkema introduced a bill in 2001 for a Constitutional amendment allowing the governor to appoint justices to a single 14-year term, an idea favored by state supreme court justice Elizabeth Weaver. More dramatically, the ABA has called for a sweeping overhaul of the current state system. In 2003, the ABA Commission on the 21st Century Judiciary warned that partisanship over the courts was escalating to crisis levels. Among 23 recommendations, the commission called for limiting judges to service of either one long term or until a specific age, without eligibility for retention or reelection. Such limits are needed to "inoculate America's courts against the toxic effects of money, partisanship and narrow interests," the commission declared. (Justice at Stake Campaign. "ABA Commission Warns: State Court Systems at Risk." March 2003.)

Advocates of reform say it may cure other ills and weaknesses, too. Reform might eliminate so-called "negative campaigning." Michigan Supreme Court Chief Justice Maura Corrigan believes negative campaigns create perceptions among voters that justices are "bought" by special interests. Moreover, judges may lose independence out of fear that certain opinions will be used against them in negative campaign ads.

Another blemish that might be cured is that of real or perceived lawyer LOBBYING. For years, attorneys—particularly plaintiffs' lawyers—have outspent the largest oil and automotive companies in judicial campaign contributions. The ABA has spoken out sharply against attorneys contributing to campaigns of judges before whom they do frequent business or from whom they wish to gain court-appointed business. Yet just like other campaign contributors, attorneys are exercising their speech rights under the FIRST AMENDMENT.

Concerns about politicization of the judiciary soared during the unusual 2000 presidential election. When Florida circuit judge Nikki Ann Clark, an African American and a Democrat, was assigned one of the election cases seeking to invalidate as many as 15,000 absentee ballots from Florida's Seminole County, candidate GEORGE W. BUSH's attorneys requested that she RECUSE herself from the case. Just weeks before, Bush's brother, Republican Florida governor Jeb Bush, had bypassed her for a state appellate court vacancy. She refused to recuse herself, issuing a decision unfavorable to Bush and favorable to Florida's African–American voters. After her decision was upheld by both the appellate court and the Florida Supreme Court, critics complained that their justices had been appointed by Democratic governors.

Both sides, in fact, found much to complain about. After a sharply divided U.S. Supreme Court reversed the Florida Supreme Court and halted the manual recount of votes (BUSH V. GORE, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 [U.S. 2000]), critics of the decision scathingly denounced it as politically motivated. In fact, 524 U.S. law professors at 120 American law schools took out an ad in The New York Timescriticizing the majority for "acting as political proponents for candidate Bush, not as judges." (People for the American Way Foundation. "524 Law Professors Say" 2001.) Other critics seized upon an alleged remark by Supreme Court Justice Sandra Day O'Connor, reported in the January 1, 2001, issue of Newsweek. "This is terrible," Justice O'Connor is supposed to have said upon learning that Gore was ahead. Only a Bush victory would have allowed her to retire knowing that a conservative replacement would be found for her on the Court.

FURTHER READINGS

"ABA Commission Warns: State Court Systems at Risk." 2003. Justice at Stake Campaign. (March). Available online at <www.justiceatstake.org/contentViewer.asp?breadcrumb=3,358> (accessed July 15, 2003).

"Bush v. Gore and the Conservatives: Gary Rosen & Critics." 2003. Commentary 113 (March).

Ezzard, Martha. 2002. "Money Can't Buy Judicial Elections Yet." The Atlanta Journal and Constitution (August 18): G3.

Law Professors for the Rule of Law. 2001. "524 Law Professors Say by Stopping the Vote Count in Florida, the U.S. Supreme Court Used Its Power to Act as Political Partisans, Not Judges of a Court of Law." Advertisement. Available online at <www.the-rule-of-law.com/archive/supreme/viewad.html> (accessed July 15, 2003).

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