In recent years there have been repeated efforts that threaten the independence of our state judiciary systems. Groups in Missouri, Arizona and Iowa, for example, have sought to replace long standing merit selection systems with the direct election of judges. Another group, the American Justice Partnership has criticized the Open Society Institute for supporting merit selection of judges on the ground that the Institute is attempting to take away the right to vote.
Such efforts foolishly ignore the increasing number of politically charged judicial contests that are characterized by large campaign expenditures from groups or individuals who seek to influence judicial decisions.
The business community has reason to be seriously concerned with this trend.
A particularly egregious case involving a campaign contribution to a judicial election was highlighted by the decision of the Supreme Court of the United States in Caperton vs. Massey (2009) (reversing a lower court's ruling for a company whose chief executive officer had made a $3 million campaign contribution to the judge who ruled for his company). The Committee for Economic Development (CED), joined by Intel, Lockheed Martin, PepsiCo, and Wal-Mart Stores, filed an amicus brief in the Supreme Court seeking reversal of the lower court's decision.
It seems doubtful however that the Caperton decision will protect companies from the bias of judges who favor those who have been regular contributors to their campaigns for reelection. Corporations that do business in multiple states are particularly vulnerable to plaintiffs who can choose the state where the judges are more likely to be favorable to them.
There is today considerable concern in the business community with judicial elections. In 2007 the CED commissioned a poll by Zogby International that found four out of five business leaders worry that financial contributions have a major effect on decisions rendered by judges. The poll also found near universal concern that campaign contributions and political pressure will make judges more accountable to politicians and special interests then to the law. Finally, the poll found that 71% of business leaders support a merit or appointment system for the selection of judges.
The 2010 US Chamber of Commerce State Liability Rankings Study found that two-thirds (67%) of businesses polled reported that a state's litigation environment is likely to impact business decisions such as where to locate or do business.
An independent judiciary is necessary to protect our free market economy. That independence is too often undermined by partisan elections that require judges to raise campaign funds. The bottom line is that businesses are increasingly enmeshed in contentious judicial political campaigns. A far better alternative is the merit selection of judges.
Business is best when it operates in the market place and not the political arena.