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April 2008Flood of Money Endangers Perception of Judges’s Impartialityby John R. Ruhl Recent studies show that most American citizens believe that judicial candidates take careful note when large sums of money are paid out to advance their judicial election campaigns, and that such expenditures influence their decision-making once they are elected.1 If that is an accurate perception, then the public image and credibility of Washington’s courts may be in for some serious strain. Consider the following facts from the 2006 Washington State Supreme Court elections: • In 2006, for the third time in four election cycles, Washington’s Supreme Court candidates set a fundraising record.2 • There were more independent expenditures by third-party advocacy groups — from both the left and the right — than in any other state’s high-court campaigns in 2006.3 • Washington was the only state where every one of the campaign television advertisements (1,081 of them) was paid for by outside groups rather than by the candidates’ own campaigns.4 Washington appears to have joined the ranks of many other states where high-court races are targeted and heavily influenced by major “independent expenditures,” that is, money spent by entities other than the candidates’ own campaigns. Although the top fundraising candidate in the 2006 Washington State Supreme Court election was not elected, that result appears to be an exception to the rule. Nationwide, there is a direct correlation between the number of dollars spent to elect a judicial candidate and the candidate’s prospects of success. For example, in 2003–2004, 35 out of 43 high-court races were won by the candidates who were the top fundraisers, a success rate of 81 percent.5 What is the fruit contributors can hope to reap? Two recent studies of the Ohio and Louisiana high courts have shown that elected appellate judges in those states tend to vote in favor of their contributors. In a 2006 study, the New York Times examined several years of decisions by the Supreme Court of Ohio and found that, on average, individual justices had ruled in favor of their contributors 70 percent of the time. One justice had favored his contributors 91 percent of the time.6 A similar conclusion is reached in a separate study to be published soon in the Tulane Law Review. The article reports that the justices of the Louisiana Supreme Court, on average, have voted in favor of their contributors 65 percent of the time, and two of the justices have favored their contributors 80 percent of the time.7 The Ohio justice with the 91 percent record was quoted in the Times as saying that “any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary.”8 In a recent article in a separate publication, another judge responded: “No one can argue with that statement. But when the public knows that this judge has ruled in favor of his contributors 91 percent of the time, the public’s perception is that there is a definite link — and that justice can be bought.”9 Almost 120 years ago, those who authored the Washington State Constitution grappled with this very same issue. At the state constitutional convention in 1889, a delegate successfully urged his colleagues to protect the impartiality of the Supreme Court by increasing the number of justices from three to five, arguing that: “[It will be] easier to control three men than five. All a corporation would have to do would be to control one man in a court of three to get a favorable decision.”10 In 1907, the Washington Legislature stepped forward to protect the courts from the political machines that controlled judicial elections. At that time, judicial candidates were nominated solely by political parties, and their party affiliations appeared on the ballot. A judicial candidate’s party loyalty was the single most important criterion for success in an election.11 The 1907 Legislature helped free the Court from political-party control by including judicial candidates in the newly enacted primary-election process. The new law provided that “[n]o person who desires to become a candidate [for judicial office] shall certify his party affiliation.”12 In 1909, the law was amended further to provide that judicial ballots were to be printed and labeled separately from the other ballots, and that “any voter shall have the privilege of voting [the “Non-Partisan Judiciary Ticket”] alone.”13 These were major improvements at that time. But they did not root out the problem that remains today: In order to attract any significant attention from voters (and those who purchase mass advertising to influence voters), judicial candidates must campaign just like other office seekers. In a case decided earlier this year, several justices of the U.S. Supreme Court warned of the dangers of mixing money with judicial politics. Although concurring with the majority’s decision that the Supreme Court had no constitutional grounds to invalidate or alter New York’s judicial election system, Justices Anthony M. Kennedy and Stephen G. Breyer nevertheless seriously questioned whether the conflicting influences of political parties, special-interest groups, and no-holds-barred election spending may be at odds with “the perception and the reality of judicial independence and judicial excellence.”14 Similarly, in a separate concurring opinion, Justice John Paul Stevens, joined by Justice David H. Souter, emphasized that the majority’s narrow holding: should not be misread as … disagreement with the findings of the District Court that … lend support to the broader proposition that the very practice of electing judges is unwise. But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.”15 One thing is certain: If the current spending wars in judicial elections continue to escalate, it may be very difficult for judges to avoid the pitfall that was frankly acknowledged by one of the judges quoted in the Walsh Commission report, namely, “[having] to look over his or her shoulder at the political wind that’s blowing with regard to each decision — or perhaps be forced into rendering a political decision rather than a decision of justice.”16 John R. Ruhl is a member of the Seattle office of Eisenhower & Carlson PLLC. He is the immediate past president of the King County Bar Association. He also serves as a member of the WSBA Judicial Selection Task Force and helped draft the Task Force’s majority report. NOTES |
