Elected Justice

I do a fair amount of public speaking -- usually in the context of continuing legal education. Unsurprisingly, one of the subjects I often talk about is defending death penalty cases. This usually takes the form of lectures, discussions as well as small group workshops. After a lecture on motions practice in death penalty cases, I remember being asked the following question: "What is the first motion you file in a death penalty case?"

I instinctively responded, only slightly tongue-in-cheek, "A motion to continue this case to an uneven numbered year. The last thing I want is for my client's case -- or his life -- to become part of a judge's reelection campaign." The audience of other criminal and death penalty defense lawyers laughed -- the way that you do to something that is both funny and horribly true.

Why -- even in a jury trial -- do I say that the judge makes such a difference? Well, the judge rules on motions to let in or keep out evidence; he enforces, or doesn't enforce, the rules of discovery; and he determines whether the defense will get enough time to properly prepare for trial. The judge also decides how jury selection will be run; she rules on objections during trial; and she determines what instructions the jury will get before deliberation.

Most importantly, the judge creates the courtroom atmosphere. Juries look to the judge for guidance, and if the judge dislikes you or just is on the other side -- whether that is the prosecution or the plaintiff or the corporate defendant -- the jury can tell. If, when you get up to cross-examine a witness, the judge rolls his eyes, turns his chair around and tosses his pen into the air (I am not making this up -- this has happened to me), the message to the jury is clear: don't listen. In my experience if the judge's behavior signals that the defendant and the defendant's lawyers are bad and that means the jury will likely see us that way. And also in my experience, an elected judge knows that you seldom get in trouble with the electorate for locking up someone, but you sure can for letting them go.

The general public probably has no idea how much running for election warps the process -- that a judicial candidate running for election has to raise money (and increasingly more of it), and has to please the electorate, so we end up with judges running campaigns that sound more like they are running for sheriff than to be a neutral arbiter of the law. This problem has been noted for a long time, but has steadily gotten worse. For example Oregon Supreme Court Justice Hans Linde noted that:

[C]rime and punishment, guilt and retribution, remain the paradigm of the judicial morality play [in campaigns]. The effect on elective courts is profound when it is not ludicrous. Every judge's campaign slogan, in advertisements and on billboards, is some variation of 'tough on crime.' The liberal candidate is the one who advertises: '[T]ough but fair.' Television campaigns have featured judges in their robes slamming shut a prison cell door. One is said to have been a probate judge, and he was overwhelmingly re-elected.

John Grisham's book The Appeal in which he describes a nefarious plot to make sure the right justice is on the court to overrule a trial verdict against a chemical company -- a plot that succeeds -- is unfortunately not much off the mark.

As recently appeared in a New York Times editorial, a new report has come out by three nonpartisan legal reform groups -- the Justice at Stake Campaign, the Brennan Center for Justice at New York University School of Law, and the National Institute on Money in State Politics which shows how this problem has ballooned out of control in the 39 states that elect their judges, and how special interests are trying to buy justice. The decision by the United States Supreme Court allowing free corporate and union spending in political campaigns, including in judicial races just makes things worse. (Citizens United v Federal Election Commission, 558 U.S. 50 [2010]), opening the floodgates to undue influence by those with money.

There have been many articles about the insidious effects of this influx of monied interests into judicial campaigns, and retired Supreme Court Justice Sandra Day O'Connor has been a tireless spokesperson for its dangers and the need for merit selection and periodic review of the judiciary. She is right -- it is not only difficult to remain uninfluenced by who gives you money, it appears that moneyed interests are finding candidates who mirror their views and running them.

Being a judge is a hard job. It requires intellectual acuity, legal knowledge, patience, compassion and toughness and most important of all, independence. We need to change how we select judges in this country before judicial independence becomes not only endangered, but extinct.