The cost of judicial elections in dollars, public perception, public confidence in the courts and pressure applied to sitting judges is astounding. A recent national, nonpartisan study revealed tens of millions of dollars are now invested in judicial contests in the U.S. Campaign contributions are pouring into judicial elections from special interest groups who try to tilt the scales of justice through money and expensive ads that are nasty, misleading and target sitting judges.
Findings from the Brennan Center for Justice at the New York University School of Law and the National Institute of Money in State Politics’ 10-year study of the nation’s judicial elections uncovered such troubling trends as “nasty and costly TV ads [that] are often a prerequisite to gaining a state Supreme Court seat,” and “special interest groups seek the defeat of specific judges as retaliation for a ruling.” However, the most alarming trend is that these political tactics are viewed as the “new norm.”
The Brennan study does focus on states having contested judicial elections for judges on their state’s highest court which, fortunately, is not the case in Maryland. Judges on our state’s Court of Appeals undergo retention elections, but judges on Maryland’s circuit courts face judicial elections and must campaign when challenged. Judicial elections prove costly in Maryland. In preparation for Maryland’s primary election on September 14, sitting judges in three counties invested considerable time and expense campaigning to retain their seats on that county’s circuit court (see “MSBA Supports Sitting Judges, Merit Selection of All Judges”), and in Anne Arundel County they are doing it again for the November general election.
Millions Invested Nationally in Judicial Contests
In the last decade, over $206 million was spent on judicial campaigns in states having contested judicial elections for judges on their state’s highest court. A recently released national study of the above judicial elections uncovered many alarming trends, including the influx of influential special interest campaign contributions, nasty TV ads considered to be a prerequisite for winning and the plummeting public confidence in this nation’s justice system. Judicial elections prove costly on all fronts.
Released in August, this comprehensive judicial election study, conducted by the nonpartisan Justice at Stake Campaign, the Brennan Center for Justice at New York University School of Law and the National Institute of Money in State Politics from 2000-2009, indicates “in state high court judicial contests – tens of millions of dollars raised by candidates was from parties who may appear before them and millions more poured from by interest groups.” Moreover the contests contained “nasty and misleading ads and pressure on judges to signal courtroom rulings on the campaign trail.”
The New Politics of Judicial Elections, 2000-2009: Decade of Change discloses that roughly “seven in ten Americans believe campaign contributions affect the outcome of courtroom decisions and almost half of state judges agree.” This document cites former Supreme Justice Sandra Day O’Connor as stating, “In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution.”
Findings documented in the The New Politics of Judicial Elections, 2000-2009: Decade of Change (www.brennancenter.org/content/resource/the_new_politics_of_judicial_elections) unveil troubling disclosures, raise a number of red flags and underscore alarming trends in the last decade that are very likely here to stay as long as state judicial elections continue:
- Campaign fundraising more than doubled, soaring from $83.3 to $206.9 million;
- An estimated $93.6 million was spent on airtime for high court candidate TV ads, with an average $1+ million spent per campaign ads;
- Special-interest groups and party organizations accounted for $39.3 million of these ads, with their ads often harsher than candidate ads, resembling “attack dogs;”
- Sitting high court judges know their decisions may trigger support or retaliation in the next election given the litigation explosion surround judicial elections, pitting business and conservative groups against plaintiffs’ lawyers and unions;
- There are secretive state and national campaigns to tilt state Supreme Court elections.
The result of the negativity resonating from judicial campaigns and contested elections is a serious hit to the public’s confidence in judges and the justice system. Traditionally, judges have been held in higher esteem than most governmental officials and politicians, but now judges are falling to the status of “just another politician” in the eyes on many citizens. And public trust in the courts is spiraling right along with them.
This plummeting of public confidence threatens the foundation of the Judiciary. The “justice of sale” perception has spurred many states to seek meaningful reforms and re-structure their judicial selection processes. Merit selection, one of the most popular reforms, has gained momentum across the nation. Now, voters in Kansas and Missouri have opted for appointment systems over competitive elections for judges, and Nevada voters may opt for merit selection next month. For 30+ years, the Maryland State Bar Association has supported merit selection as a much better means of selecting circuit court judges.