This week the Supreme Court upheld a Florida rule prohibiting candidates for judge from personally soliciting campaign contributions. Chief Justice John G. Roberts Jr. wrote the majority opinion in the 5-4 ruling, but it was Justice Ruth Bader Ginsburg’s concurring opinion that explained why curbs on fundraising by judicial candidates are important.
“In recent years," Ginsburg noted, "issue-oriented organizations and political action committees have spent millions of dollars opposing the re-election of judges whose decisions do not [toe] a party line or are alleged to be out of step with public opinion.”
Of course, the Supreme Court wouldn’t have to concern itself about what judicial candidates could say – about money or anything else – if all 50 states followed the example of the federal government and provided for the appointment rather than the popular election of judges. But, as Roberts noted, in 39 states voters elect trial or appellate judges. (California has a hybrid system in which the governor plays a dominant role.)
It doesn’t take a lot of reading between the lines to suspect that Roberts disapproves of electing judges. Federal judges in general recoil at the idea that an aspiring judge would have to press the flesh at senior citizens centers, kiss babies and ask – even through an intermediary – for campaign donations.
The legal establishment and good-government groups tend to agree. For years, they have campaigned across the country for a different approach to choosing judges. One alternative would be for states to adopt the federal system of appointment by the chief executive followed by Senate confirmation. Another option is so-called “merit selection," in which the governor must choose from names recommended by a nonpartisan panel.
I’m a scarred veteran of the judicial-selection wars, having written dozens of futile editorials in Pittsburgh calling for an end to the partisan election of judges. Defenders of the elective system made several arguments including the importance of judges meeting “real people” before they put on the robe, and the idea that an appointive system would disproportionately draw judicial nominees from large law firms and disfavor women and minorities.
Those arguments are easy rebutted. But there is another that is more difficult to dispose of: that judges, particularly those on appellate courts, make decisions that affect the lives of ordinary citizens as much as any enactment of a legislature or city council. What’s more, judges of comparable qualifications will reach different conclusions based on their legal philosophy. Given those realities, why shouldn't the voters get to choose which philosophy prevails?
There's no doubt that equally qualified judges can see a case differently. A day before the Supreme Court ruled on fundraising by state judicial candidates, the justices heard arguments on the constitutionality of state bans on same-sex marriage. It’s widely expected that two of the justices – Antonin Scalia and Anthony Kennedy – will be on opposite sides when the court reaches its decision. Both justices are graduates of Harvard Law School who at the time of their nominations were rated “well qualified” by the American Bar Assn.
In 1987, during the controversy over President Reagan’s ultimately unsuccessful nomination of Robert H. Bork to the Supreme Court, the New Republic published an article by Harold Meyerson titled “Bork and Bird.” The Bird in question was Rose Bird, who was appointed chief justice of California by Gov. Jerry Brown but who failed to win retention by the voters in 1986, after a campaign in which she was criticized for her rulings against the death penalty.
Meyerson, who had worked on the retention campaign for Bird and two other justices, lamented that supporters of retention had couched the campaign in terms of “keeping politics out of the court.” He recalled that former Gov. Pat Brown, Jerry Brown’s father, sounded this theme at a press conference, only to be asked how he could reconcile that position with his opposition to William Rehnquist’s nomination to be chief justice. “You know,” the elder Brown said, “I can’t.”
Looking back at the voters' rejection of Bird and the other two justices, Meyerson mused that “it would have been to our advantage to convert the election into a rather conventional political contest in which we showcased the court’s record on civil cases while its critics continued their assault on its criminal record.” He concluded that “in a democracy, it is not just legitimate but essential for the people to concern themselves with the judicial philosophy of the judges they appoint.”
Barack Obama would agree. As a senator, he voted against John Roberts’ nomination as chief justice, citing his concerns about the “depth and breadth of [Roberts’] empathy.” (Whether Obama’s qualms were sincere is another question.)
But you can accept that judicial philosophy is a fair consideration in choosing judges and still believe that appointment is preferable to election.
A lot of potentially exceptional judges -- liberal and conservative --simply won’t run the gantlet of competing in a competitive election. On the other hand, as Pennsylvania’s experience sadly demonstrates, elections for the state Supreme Court attract mediocre candidates who can capitalize on irrelevant qualities such as ethnicity, home county, a famous name or even a favorable ballot position. It's rare that voters are aware of a judicial candidate's legal philosophy.
There is a strong case for ending the elections of state judges, but it isn’t that “well qualified” jurists are interchangeable legal technocrats.
Follow Michael McGough on Twitter @MichaelMcGough3