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Bench Memos

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Stubborn Facts about Judicial Elections



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Last Friday the Washington Post published an excellent op-ed by Professor Chris Bonneau defending judicial elections from attacks by Justice O’Connor and her allies in the Soros network. He exposes these attacks as based on rhetoric detached from empirical facts. Here’s a taste:

There is no proof that elected judges are for sale. Critics of judicial elections frequently point to Caperton v. Massey as an example of how judges can be “bought.” This West Virginia case, in which a judge supported by the Massey coal company won election and then did not recuse himself regarding the company’s appeal of a $50 million verdict, includes several facts that are routinely ignored. A news release from the West Virginia Court of Appeals noted that Chief Justice Brent Benjamin — the judge who allegedly benefited from millions of dollars in campaign ads paid for by the chief executive of Massey Energy — voted against Massey Energy or its subsidiaries 81.6 percent of the time, including in the Caperton case. These votes “cost” Massey Energy approximately $317 million. In contrast, Massey “benefited” from Benjamin’s votes 18.4 percent of the time, for a total sum of about $53.5 million. So, was Benjamin’s vote “bought”? The numbers are unconvincing. More generally, there is no systematic evidence to date that judges’ votes are influenced by campaign contributions.

Little has also been said about the biases in the systems with which critics would like to replace elections. No method is perfect. But, unlike the “merit” commission process most frequently offered as an alternative — in which judges are selected by the governor off a list formulated by political and legal elites and then retain their jobs simply by receiving a majority of “Yes” votes in an uncompetitive election — elections are at least transparent processes open to the public.

In the debate so far, many of the arguments have been based on rhetoric, not fact. It is important to remember that efforts to maximize judicial “independence” from the electorate can also maximize independence from the law and the Constitution. Without a mechanism for effectively holding judges accountable, judges are free to “go rogue” and make decisions based solely on their political views. Is that better than a campaign season every now and then?

Before Justice O’Connor could announce her response via robo-call, the Post published a brief LTE response by Bert Brandenburg and Seth Andersen. Brandenburg and Andersen are leaders of the Soros-funded Justice at Stake and American Judicature Society, respectively, and the most active proponents of the Missouri Plan. They believe Bonneau’s op-ed “skipped over important data suggesting that justice could be for sale.” Specifically, “State supreme court candidates raised more than $206 million in the past decade, shattering records in 20 states.”

Apparently they failed to actually read the op-ed, which persuasively demonstrates that the “justice for sale” meme is based on rhetoric rather than evidence. Quoting the total for campaign spending (over ten years in 22 states and hundreds of candidates, no less) is exactly the type of rhetoric Bonneau criticizes — it does nothing to show actual bias or corruption among judges. But let’s address their point anyway.

First: Of course spending has gone up — in proportion to the enormous damage done by liberal activist courts. Why is that a surprise? As much as the Left would love the American people to roll over and accept rule by liberal judicial elites, it is being fought hard wherever the people have a say in the selection of judges. Brandenburg and Andersen prefer a world in which judges face no consequences for making decisions on the basis of political views and cronyism rather than the law or the Constitution.

Second: Since when is campaign spending a bad thing? According to the findings of a 2007 study by Professor Bonneau and Professor Melinda Gann Hall, “increased spending in elections to state supreme courts has the effect of substantially enhancing citizen participation in these races.” Moreover, as Bonneau and Hall have also written, the nonpartisan elections that Brandenburg and Andersen prefer actually inhibit citizen participation and increase the cost of seeking office.

Brandenburg and Andersen’s real agenda is to lay groundwork for the spread of the Missouri “Merit Deception” Plan for selecting state supreme court judges. As I have written before, there is a growing body of evidence showing that the Missouri Plan has dramatically tilted the composition of state supreme courts to the left. This is how the people of Iowa ended up with a supreme court that unanimously ruled in favor of gay marriage, the people of Missouri with a supreme court that cited “the views of the international community” to invalidate a death sentence, the people of Kansas with a supreme court that has repeatedly injected itself into the state’s budget process, and the people of Alaska with a court that invalidated the state’s reasonable, pro-life Parental Consent Act.



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