Partisan Judging Data by Joanna Shepherd and Michael Kang

The progressive American Constitution Society released a study finding judges tend to rule for members of their own party in deciding election disputes, and these effects are exacerbated by campaign donations. The report by Emory Law professors Joanna Shepherd and Michael Kang finds that “[j]udicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.” The authors also highlight that “[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about.”

Another progressive organization, the Brennan Center, emphasizes two quotes from the study:

(1) “[i]f judges are influenced, consciously or not, by party loyalty in election cases, they are likely tempted to do so in other types of cases as well.”

(2) “reformers have advocated, among other things, public financing of state judicial campaigns; term limits for state judges; and various merit selection, judicial evaluation, and disciplinary systems,” and this study “bolster[s] the case for judicial selection reform.”

This study is valuable in providing data on the extent to which judges' politics matter to their rulings. However, progressives often err in thinking something like "elected judges are especially political so we should reduce the influence of judicial campaign money or, even better, replace judicial elections with merit selection." This is deeply wrong in several ways.

To some extent, judges should be political. Judges makes law. Lawmaking is part of their jobs, and has been for centuries, especially for high court judges. Lawmakers should, in a democratic society, be selected democratically. "Merit selection" is usually a euphemism for a method of judicial selection that violates the basic principle of democratic equality--the rule of one-person, one vote--by making a lawyer's vote worth more than another citizen's vote. "Merit selection" is a propaganda term for the nominating commission often known more-neutrally as the Missouri Plan. These commission systems often compound their violation of democratic equality by operating in secret so the commission's key vote is hidden from the public and accountability. Finally, Missouri Plan systems usually retain the problems of judicial elections because they usually subject sitting judges to retention elections.

Rather than the anti-democratic, secrecy, and campaign-contribution problems of the Missouri Plan, states should replace judicial elections with a judicial selection appointment process modeled on that found in the US Constitution. In about a dozen states governors nominate judges and they are confirmed by the senate or other popularly-elected body. This judicial appointment process selects judges with a form of indirect democracy, better for the rule of law than the direct democracy of electing judges.

As to judicial retention, the US Constitution gives federal judges job security which strengthens judicial independence compared to requiring judges to win elections to keep their jobs. States don't have to go as far in the direction of judicial independence as life tenure, as a long non-renewable term (say 14 or 20 years) would probably work about as well.  

State Supreme Court Campaign Contributions

State supreme court campaign contributions detailed in a report by the Brennan Center, which is summarized by law professor Rick Hasen.

The progressive Brennan Center report uses strong language about Kansas conservatives: "Bullying in the Heartland—Political Assaults on the Kansas Supreme Court."

It also discusses North Carolina, Ohio and Tennessee. 

Judge Rated Low by Bar Wins GOP Primary: Surprising Pennsylvania Supreme Court Election?

In the Pennsylvania Supreme Court Republican primary a candidate, Judge Anne Covey,  rated “not recommended” by the Pennsylvania Bar Association defeated Justice Correale Stevens who the bar rated “highly recommended,” Malia Reddick points out. Previously, Covey called the judicial-evaluation process of the Pennsylvania Bar Association as "unethical, unprofessional, and less than forthright," according to The Philadelphia Inquirer.

Three seats on the court are open in the general elections this November. The GOP candidates (who each won the May primary) are Anne Covey, Michael George, and Judith Olson

The Philadelphia Inquirer discusses campaign contributions.

Former Chief Justice of Alabama "Disgusted" by What She Had to Do to Get Elected

Sue Bell Cobb writes in Politico "I never quite got over the feeling of being trapped inside a system whose very structure left me feeling disgusted."

Justice Cobb's article entitled "I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There: How money is ruining America’s courts" says

"In Alabama, would-be judges are allowed to ask for money directly. We can make calls not just to the usual friends and family but to lawyers who have appeared before us, lawyers who are likely to appear before us, officials with companies who may very well have interests before the court. And I did."

Justice Cobb: "When a judge asks a lawyer who appears in his or her court for a campaign check, it’s about as close as you can get to legalized extortion. Lawyers who appear in your court, whose cases are in your hands, are the ones most interested in giving. It’s human nature: Who would want to risk offending the judge presiding over your case by refusing to donate to her campaign? They almost never say no—even when they can’t afford it."

Bringing back memories of when I lived in Alabama, Justice Cobb mentions the notorious TV ad portraying the opposing judicial candidate as a skunk. I wrote about Alabama judicial elections, in  Money, Politics and Judicial Decisions

Unfortunately, Justice Cobb does not highlight the lawmaking role of state supreme court justices, and instead says they’re "supposed to apply the settled law against the facts and evidence of the case before their court." That sounds more like a trial court. The state supreme court has lots of discretion in making the law "settled" in one direction or another so lower courts can then apply it. It's that lawmaking role of supreme courts that justifies a democratic form of judicial selection, rather than what Justice Cobb calls "merit selection."

Laughs and Insights in Video of John Oliver Mocking Judicial Elections

Very funny mocking of judicial elections with several good points along with the usual progressive flaw of failing to acknowledge that judges, esp. at the high court level, make law rather than merely applying law made by others. John Oliver's only guest is from the progressive Brennan Center.

SCOTUS to Address Judicial Election Campaign Funding

Is it constitutional to prevent candidates in judicial elections from personally soliciting campaign contributions?  The Supreme Court may tell us when it rules in Williams-Yulee v. Florida Bar.  It is scheduled for argument Jan. 20, 2015.

"The case brings three important questions to the fore, Ware said. The narrow question is whether prohibiting a judicial candidate from personally soliciting campaign funds is constitutional. This question is intertwined with broader questions about how to fund judicial election campaigns and, at the broadest level, whether to have judicial elections at all." 

Unconstitutional to Forbid Judicial Candidates from Soliciting Campaign Contributions?

Is it constitutional to prevent candidates in judicial elections from personally soliciting campaign contributions?  The Supreme Court may tell us when it rules in Williams-Yulee v. Florida Bar.