The process of selecting state judges varies from state to state. Some are elected, some are appointed, and in some states there are appointments that then go to voters for approval. The idea is to have state judges who represent the citizens of the state and not the political powers that be, but the process is inevitably political. Some argue that it is becoming yet another casualty of the Supreme Court’s Citizens United decision. Political donations, they say, are increasingly playing a role in the selection of state judges and weakening overall judicial impartiality. Please join us to discuss state judges and special interests.

Guests

  • Charlie Hall editor of Justice at Stake.
  • Ian Millhiser senior constitutional policy analyst at the Center for American Progress.
  • Scott Gaylord associate professor of law at Elon University School of Law.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Money is playing a greater role than ever in state judicial elections. Critics argue the trend could take a toll on judicial impartiality. Joining me in the studio to talk about how different states choose judges and why there's growing concern about how the process is changing: Ian Millhiser of the Center for American Progress, Charlie Hall from Justice at Stake and, joining us from Elon, N.C., Scott Gaylord. He's associate professor of law at Elon University School of Law.

  • 10:07:40

    MS. DIANE REHMAnd we do invite you to chime in with your questions and comments. Feel free to call us, 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or Twitter. Good morning, gentlemen. Thanks for joining us.

  • 10:08:03

    MR. IAN MILLHISERGood morning.

  • 10:08:03

    MR. CHARLIE HALLGood morning.

  • 10:08:05

    REHMCharlie, let me start with you. Give us a brief overview of how judges are selected in various states around the country.

  • 10:08:17

    HALLCertainly, Diane. We've actually been arguing as a country about courts and how to choose judges almost from the birth of our country. And we've seen different waves over the last 200 years.

  • 10:08:29

    HALLAs most people know about the federal courts where judges are appointed by the president and for life -- and that's the way all the first 13 states started -- but we've seen waves since then, beginning in the 1830s with Andrew Jackson's era where there's a lot of populism, it swung to the other extreme. And states, for the next 60, 70 years, swung overwhelmingly towards electing judges, just like any other position, like a senator or a governor.

  • 10:09:02

    HALLThere have been issues and concerns and a little bit of progressive movement in, ultimately, starting 1940s through the '70s. People became concerned about the influence of politics and money, the idea that judges could be bought or influenced by sort of side channels outside the courtroom. And so appointments became much more common. And with this, a new device of using commissions of lawyers and non-lawyers to essentially vet candidates, submit them to the governor. And the idea was to take politics out of the process, and that's really where the debate has wound up.

  • 10:09:40

    REHMSo how many states currently elect judges? How many states appoint judges?

  • 10:09:47

    HALLIt's actually a very interesting split. At the Supreme Court level, 22 states hold competitive elections, just like we expect with other offices. Twenty-four states use this commission, as to my view, is called merit selection, and another five use other forms of appointment. So it's slightly more common still to appoint judges than to elect judges at the state Supreme Court level.

  • 10:10:09

    REHMIt's really important, I think, for people to realize that 95 percent of issues are settled by state courts.

  • 10:10:20

    HALLThat is exactly right. When we think of courts, we think of the U.S. Supreme Court. They handle 200-odd cases a year. If you are getting a divorce, if you have a lawsuit, if you are -- you've been facing a traffic case, all of that happens in the state courts. It's a hugely important branch, and it's one that most Americans just don't think about.

  • 10:10:39

    REHMCharlie Hall, he's editor of Justice at Stake. Turning to you, Ian Millhiser, what has the Center for American Progress been -- why have you been focusing on this?

  • 10:10:56

    MILLHISEROK, sure thing. So I want you to imagine for a second that you come to the election next November, and you get your ballot. And you find out there's a hospital opening in your neighborhood. And at the top of the ballot, it says, we need to elect a doctor to be the head of the hospital. Here's five names. Vote for someone. And then you turn the page, and this hospital needs a head of cardiology and head of gastroenterology and head of obstetrics, and so there's a list of names you've got to vote for there.

  • 10:11:25

    MILLHISERAnd you continue to turn the page, and you start electing doctors all the way down to the first-year residents. I don't know about you, but I wouldn't want to be treated at that hospital. And the reason why is because I don't know who the good doctors are. Most voters don't. And as it turns out, most voters don't know who the good lawyers are and who the good judges are. So the decisions that are frequently made at the polls wind up often not being very informed, and there's another problem.

  • 10:11:55

    MILLHISERSo, going back to the hospital, imagine there's a drug company, and that drug company knows there's a particular doctor who will prescribe their drug over and over again and make them a lot of money. So that drug company decides to spend $1 million running an ad campaign to promote their candidate as the head of cardiology at that hospital. Well, that's what we're seeing in our state judiciaries.

  • 10:12:20

    REHMAnd how do you think the Supreme Court Citizens United decision has affected the process of selecting or electing judges?

  • 10:12:34

    MILLHISERWell, so Citizens United said that corporations and unions can spend unlimited amounts of money to influence elections. It also clarified to the extent there was confusion that wealthy individuals can spend as much as they want as well. And before Citizens United, I think, there was a steady stream of people wanting to influence judges who were spending money to try to buy up seats on state Supreme Courts and lower courts. That stream has now turned into a flood.

  • 10:13:05

    REHMIan Millhiser, he's with the Center for American Progress. And turning to you, Scott Gaylord, what do you see as the pros and cons of the different processes in place today of either selecting or electing judges?

  • 10:13:29

    PROF. SCOTT GAYLORDWell, certainly I think it's obviously an extremely important position, as both Ian and Charlie have mentioned, and a lot of people just are unaware of it. But I guess I take the view sort of as Churchill famously stated, "Democracy is the worst form of government except for all the others." To me, judicial elections probably fit in the same category. I mean, there are different concerns. There's no perfect way to select judges.

  • 10:13:50

    PROF. SCOTT GAYLORDAnd I think in large measure you need to step back, and people need to consider what we want from the judiciary. What are the goals that we seek from a judiciary? And then see what are the various pluses and minuses. Again, none are going to be perfect. But, I mean, three big ones to think about for your listeners would be accountability, independence and qualifications, and a lot of concern over independence.

  • 10:14:11

    PROF. SCOTT GAYLORDAnd if there's, you know, hard proof that judges are being bought, then that's certainly a concern and can undermine the system. But the judicial elections, of course, allow for the opportunity to vote those people out of office. And so if you have someone who is beholden to a particular interest, be that through elections or in the appointment scheme, I mean, we certainly can talk about the threats of politics in that as well.

  • 10:14:31

    PROF. SCOTT GAYLORDI think in your lead-in to the show, you mentioned how politics were in the process generally. And we see that in other forms of selection methods as well, so that becomes important. And with respect to accountability, certainly elections provide a direct way for the people to hold the electorate accountable. And in terms of that, you know, it's important to able to get a message out, that it -- that takes money in order to campaign and to let people know what one's views are, and those views can be political.

  • 10:15:00

    PROF. SCOTT GAYLORDI don't think anyone will challenge the view that judges are political at some level. A legal realist sort of really harped on this at the turn of the 20th century. We see that with the nomination and confirmation process in the federal system now that it's highly political and that the views of judges on things from various statutory construction, federalism, separation of powers, judicial restraint, all bear on how they decide cases.

  • 10:15:24

    PROF. SCOTT GAYLORDAnd if that's true whether they're appointed or elected, and as a result, I think it's important for citizens in the states across the country to know that and be able to respond accordingly in terms of their voting.

  • 10:15:35

    REHMScott Gaylord, he is associate professor of law at Elon University School of Law. If you'd like to join us, call us, 800-433-8850. Ian Millhiser, no perfect way, so politics are always going to be part of it. Tell me why the Center for American Progress decided to take a hard look at this.

  • 10:16:09

    MILLHISERSure thing. So I agree that politics are a problem in the judiciary. You want a judiciary that's non-ideological, and we only have to look at our U.S. Supreme Court to realize that, you know, the party of the president who appoints the judge has a lot to do with what the judge winds up doing when they get on the bench. But there's another equally important interest, and that's that we don't just want judges who are non-ideological. We want judges who are not self-interested.

  • 10:16:37

    MILLHISERAnd the problem that we're seeing in states that have elected judges is that you have corporations who have a case pending in front of the court, giving money to the judges on the court when they have an election coming.

  • 10:16:51

    REHMSo nobody is recusing himself when perhaps a donor is involved in a court case that he or she is hearing.

  • 10:17:03

    MILLHISERIn many cases, it's up to the judge. You know, in the Wisconsin Supreme Court, recently on a 4-3 split, enacted a new ethics rule saying that, oh, it's perfectly fine for judges to sit on many cases involving their donors. Texas has had a problem with this for a long time. There was a scandal about, I believe, six or seven years ago when President Bush elevated a member of the Texas Supreme Court to the 5th Circuit.

  • 10:17:30

    MILLHISERAnd it turns out that this woman had taken tens of thousands of dollars in campaign donation from Enron and then had turned around and ruled in a case involving Enron that was worth $15 million to the company. So politics are important, but it is just as important that judges don't have an interest in the case that they're deciding. And we're seeing, in no small part because of Citizen's United, more and more conflicts of interest for judges.

  • 10:17:57

    REHMMore and more conflicts of interest, Charlie Hall.

  • 10:18:01

    HALLYeah. And also take a step back. Why is this a concern? People don't usually think about judicial elections.

  • 10:18:06

    REHMRight.

  • 10:18:06

    HALLBut starting in 2000, there was an explosion of money from special interest, not only corporations but also trial lawyers. There was really a national battle to gain control of these courts because they decide cases worth billions of dollars, and it really has raised a new specter of, can you be fair when that much money is on the table?

  • 10:18:27

    REHMCharlie Hall, he is editor of Justice at Stake. We'll take a short break. When we come back, we'll talk about a particular case in West Virginia, oral arguments being heard today.

  • 10:20:04

    REHMAnd welcome back. We're talking about the election or selection of judges in various states around the country. These processes vary from state to state. You have something like 29 states initially appointing Supreme Court justices. Sixteen states hold only one candidate retention elections for Supreme Court. Here in the studio: Ian Millhiser of the Center for American Progress, Charlie Hall, editor of Justice at Stake.

  • 10:20:46

    REHMAnd, joining us from the Elon University School of Law, Scott Gaylord, he is associate professor of law. Charlie, talk to us about this West Virginia case. What's involved there?

  • 10:21:03

    HALLWell, there's actually been two very important cases coming out of West Virginia which is one of those poster child states about all the issues we're talking about. Started back in 2004, there were two coal executives suing each other. And one company, Massey Energy, had lost a $50 million lawsuit. In 2004, while that case was being appealed to the Supreme Court, the CEO spent $3 million to un-elect one member of the state Supreme Court, replaced with another Supreme Court justice.

  • 10:21:34

    HALLAnd that Supreme Court justice -- you were asking about recusal -- twice said, no. I think I can be fair and handle this case impartially. He cast the deciding vote to overturn this $50 million lawsuit. People ask, why do these -- how do these issues play out in real life? It's a great example. This went up to the U.S. Supreme Court in 2009, and the U.S. Supreme Court ruled. It doesn't just look bad. But when that much money is in play, it actually can cause a serious risk of actual bias. It can cause a judge to change his decision.

  • 10:22:06

    HALLSo after this whole scandal, West Virginia enacted a public financing law, which is a third option that we haven't really talked about in this continuum of appointments versus elections.

  • 10:22:15

    REHMRight. Right.

  • 10:22:16

    HALLIt's a way that voters can decide who's on the Supreme Court, but it greatly reduces the pressure of judges to have to dial for dollars to get elected. Now, one of the unfortunate things is that many of the people who say they were in favor of democracy also are against exactly these kinds of reforms that can respect the special needs of courts to be fair and impartial and not play favorites.

  • 10:22:39

    HALLAnd so there's been a lot of litigation to, in effect, really cut the guts out of public financing laws to allow special interest to spend without limit but keep the candidates and the system at a very small amount. What has happened in West Virginia today is advocates who want to protect West Virginia's law, which is enacted by the legislature in 2010...

  • 10:23:02

    REHMWhich is public financing.

  • 10:23:04

    HALLPublic financing for the state Supreme Courts.

  • 10:23:05

    REHMRight. OK.

  • 10:23:06

    HALLThey're arguing that some of the free speech arguments that have been used against public financing laws should be treated differently in judicial elections. The argument is that judges play a unique role in our government, unlike a governor, unlike a senator. They have an actual constitutional obligation to be completely fair, completely impartial and treat everybody the same once the case has come before the court.

  • 10:23:30

    HALLAnd the idea is that public financing should be allowed for judges because they have the special need not to be influenced by campaign money, that case is being argued today in West Virginia.

  • 10:23:42

    REHMSo, Scott Gaylord, what's your input as to this case in West Virginia?

  • 10:23:51

    GAYLORDWell, I think that, as Charlie mentioned, a couple of, you know, important features out of West Virginia with respect to the current case, I mean, it certainly raises free speech issues. Now, as a practical matter, the current Roberts court is, I think, very likely to hold such restrictions to be unconstitutional. Now, you know, whether that should be, we certainly can argue. But the Roberts court finds it very hard to find any speech restriction that they can tolerate for better or for worse.

  • 10:24:18

    GAYLORDAnd in this situation, certainly I think the argument is there are special considerations with respect to judicial elections as Charlie and Ian are talking about. But the court has held in prior decisions, the 1976 case Buckley v. Valeo, that it musters a threat of what's called quid pro quo corruption. You rub my back, I'll rub yours-type situation, giving money for a specific return that the First Amendment speech rights carry the day.

  • 10:24:43

    GAYLORDAnd even in Caperton, the West Virginia case in 2004 that Charlie was talking about, the court did not say that the Massey Coal CEO could not give those money. There's a difference and important distinction between independent expenditures and direct campaign contributions, at least into the court's jurisprudence. And independent expenditures are money that private individuals or corporations or unions can spend independently of the campaign.

  • 10:25:07

    GAYLORDThey can't coordinate. They can't talk with the campaign and how to spend the money. They just spend their own money as they see fit. Campaign contributions are capped and are limited, so money directly to the candidate who then the candidate could then spend that are limited. And the court has taken that to being an important difference. Now, I think an important thing in terms of this bias out of the Caperton decision, the West Virginia Court of Appeals, I think, felt under attack as that court -- that case worked its way up through the courts.

  • 10:25:33

    GAYLORDAnd it released a report, I think it was last year, that said that the judge who was the beneficiary of those payments actually in prior cases had ruled against the coal company, an 81.6 percent of the cases. Now, the cost of the coal company is $317 million. Now, he ruled in favor of the coal company in that one case. But in the 18.4 percent of the cases, that favored the company only $53.5 million. And so was he really bought? I mean, is that really what was going on here? I think the evidence is not clear of that at all in that particular case.

  • 10:26:06

    REHMAnd it sounds as though you're quite right that there is no evidence. But what is left in the minds of those who are witnessing this is a question of doubt, Ian Millhiser.

  • 10:26:24

    MILLHISERWell, and the point about how people perceive things is very important. Scott mentioned the Buckley decision, which did say that campaign finance laws are allowed to present -- to prevent corruption. But the Buckley case also said that the appearance of corruption is something that government can prevent.

  • 10:26:43

    MILLHISERAnd the reason why is because it is harmful to a society, and it is doubly harmful to a society if we do not trust our judges -- if we don't trust our elected officials and judges to be making decisions not based on self-interest. Now, one thing where, I think, the Citizens United decision went wrong is the Citizens United decision said that there's not appearance of corruption when corporations, unions, whoever, are piling money into these races.

  • 10:27:13

    MILLHISERThere's actually polling on this. Only 15 percent of the country agrees that there's -- that that will not lead to corruption. And to put that number in perspective, 25 percent believe they've been in the presence of a ghost, 14 percent believe they've seen a UFO, and 19 percent believe in spells or witchcraft. So the Citizens United decision is really the jurisprudential equivalent of burning a woman at the stake because she weighs the same amount as a dock.

  • 10:27:42

    MILLHISERIt's a very far on the fringe in terms of saying that, oh, you can't possibly think that there is an appearance of corruption when all of this money is coming into the elections.

  • 10:27:55

    REHMHere's an email from Ed, who says, "As a North Carolina retired judge, where we have non-partisan judicial elections and public funding for appellate level court elections, I believe this is by far the best option. All selection processes are political in nature to include merit selection. Merit selection concentrates powers in a small elite with little or no recourse by the general public." Charlie Hall.

  • 10:28:37

    HALLWell, I think clearly the focus of this discussion today has been on money. And does that make a difference in public trust for courts? To just amplify something Ian said, we have taken polls ourselves, and 75 percent of the public believes that campaign contributions can affect judges' decisions, and almost 90 percent believe that judges should not hear cases involving major campaign donors. But there are many ways to address this.

  • 10:29:03

    HALLAnd what Ed has just talked about is the public financing system in North Carolina. It's actually been a terrific success. It was enacted in 2002. Three-quarters of the candidates since then have used the system from both parties. Minorities has actually increased the diversity on the appellate courts. It's really been a great way to balance the things we're talking about. Unfortunately, because some of the lawsuits we're talking about, public financing is under a grave threat.

  • 10:29:31

    HALLNow, merit -- one thing I want to say to set the record straight, there's a lot talk about it being a concentration in powers, influenced by lawyers. Something is lost is the U.S. Chamber of Commerce, which is obviously very business-friendly, surveys general counsel every year. And for the last 10 years, the finding has been very consistent.

  • 10:29:49

    HALLGeneral counsel, four out of the five top 10 states, eight out of the -- or four of the five top states and eight out of the top 10 are merit selection systems. Conversely, eight of the least trusted systems by the U.S. Chamber of Commerce, a business organization, are election systems. So if...

  • 10:30:05

    REHMInteresting.

  • 10:30:06

    HALLSo if merit was as tilted as people claim, I just don't think you could have that kind of finding year after year.

  • 10:30:11

    REHMNow, Scott Gaylord, here is an email from Sharon in Ravenna, Ohio, who says, "Supreme Court judges in Ohio are a joke, supposed to be nonpartisan, but it takes very little to know which party they belong to. Nasty divisive ads right now controlled by Republicans, so a citizen has little chance against a corporate party." And isn't that the risk that citizens within these states see the courts as party-controlled rather than by citizens?

  • 10:31:00

    GAYLORDWell, certainly there can be a threat of that. I think -- and to the extent citizens think that the judiciary is controlled by a particular party, well, then they have a great avenue under election systems, which is to vote for the alternative party. I mean, it's very simple. If that is so true and so obvious that people are being bought, one, I'm not sure that there's empirical evidence to back that up.

  • 10:31:20

    GAYLORDI mean, a couple of political science professors -- Chris Bonneau and Melinda Gann Hall -- have challenged that directly, and their findings contradict that. I mean, there could be this general appearance, but to the extent there is, the power of the vote is an extremely powerful one. And the more you think that these positions are political, to me, suggests all the more need for having the ability to vote people out of their acting politically, and certainly judges have the ability. The Supreme Court has recognized that.

  • 10:31:46

    GAYLORDAnd I think, you know, on a whole, it's not that controversial to say that judges are political in terms of some of the things, particularly state court judges that are making common law decisions and interpreting their constitutions.

  • 10:31:56

    REHMIan Millhiser, is there any evidence that judges are being bought?

  • 10:32:03

    MILLHISERWell, yes. I mean, there was a study in Ohio that found that the justices on the Ohio Supreme Court vote 70 percent of the time in favor of people who have donated to them. One justice in particular votes 91 percent of the time in favor of parties that have donated to him. I told you the story about the woman in Texas -- now in the 5th Circuit -- previously on the Texas Supreme Court who got tens of thousands of dollars from Enron and got a $50 million tax benefit or gave a $50 million tax benefit to Enron.

  • 10:32:38

    MILLHISERSo you do have stories like this. I want to respond to one other point about the partisanship, which is that one thing that I think makes judicial elections particularly confusing to voters is a lot of states are moving towards what they call nonpartisan elections. And nonpartisan doesn't mean that Democrats and Republicans don't have candidates. It means that the ballots don't identify who the Democrats are and who the Republicans are.

  • 10:33:02

    REHMI see. I see.

  • 10:33:04

    MILLHISERSo if you're like many voters who don't necessarily know all the down-ballot people but know, OK, you're a Republican, so you're going to vote for the Republicans, you get the ballot, and you don't know who to vote for.

  • 10:33:16

    REHMIan Millhiser, he's senior constitutional policy analyst at the Center for American Progress. And you're listening to "The Diane Rehm Show." Scott Gaylord, I know you wanted to get in on that.

  • 10:33:33

    GAYLORDSure. I think there's an important distinction certainly between anecdotes and proven causation. So there's certainly a correlation-causation issue, and it's not altogether clear, and there's some discrepancy in the research, I think, going both directions on that. But it's not surprising that if judges are political, that certain groups will vote for people who share their ideological views or preferences.

  • 10:33:54

    GAYLORDI mean, that's part of the nature of it. And at least through the campaign process, that can become known for folks, and particularly for challengers who want to point out to these problems. If there are examples of people being purchased, that's certainly a huge threat and needs to be monitored, but…

  • 10:34:11

    REHMThere's just one problem with that, which is it may take two years or however many years to vote out a particular judge, and you could do a lot of damage within those two years. Charlie Hall.

  • 10:34:31

    HALLWell, I think also all of us should remember we're not talking about Mitt Romney and Barack Obama. These are not well-publicized elections. People actually have incredibly little information about judges. So if -- and that's why money has such particular influence here. If you can get somebody on the court, the odds are good you can keep them on the court. And what we've actually seen in some of these states that a recent report by the Center for American Progress did is that when you look at the process over 10 or 15 years, national money comes in.

  • 10:35:00

    HALLThey, in effect, start, you know, swamping the state elections with their money, and before you know it, courts that used to be divided are 9-0, 7-0. And actually, what we're seeing is a drying up of choices in Alabama this year, which actually had $40 million spent on court elections in the last decade. This year, 11 seats are up for grabs, and the Democrats only filed one candidate. There's been such dominance by the business money that the local Democratic and lawyer money has simply dried up. And for voters, that means no choice.

  • 10:35:31

    REHMBut, you know, we're back to the same issue as with members of Congress. Can we truly prove that money has made the difference in a particular decision, Ian?

  • 10:35:49

    MILLHISERWe're not mind readers, so, you know, the answer is until we develop the capacity ESP -- for ESP, no. But I go back to a point that I made before, which is that the appearance of corruption is just as severe as the presence of corruption.

  • 10:36:08

    REHMWhat about that, Scott Gaylord? The appearance of corruption is almost as bad as corruption itself if people lose faith in the judicial system.

  • 10:36:23

    GAYLORDIt's certainly a threat we need to watch out for regardless of the method of selection. I mean, we've had this discussion with respect to the United States Supreme Court, and there was huge discussions about the Affordable Care Act. And if that came down 5-4 holding it unconstitutional, how a large majority of the -- you know, a large number -- percent of the population was going to view the court as unreliable and partisan and everything else.

  • 10:36:45

    GAYLORDAgain, the politics are going to be there, I think, under any method of selection, and you can't get rid of that, and there's a threat under any method of selection. A key is how can you provide checks on that, and I think that's one of the strong parts of judicial elections is it gives that accountability. Under the Missouri Plan commission system that -- that's been talked about by Charlie and Ian, you have unelected commissions making these determinations.

  • 10:37:08

    GAYLORDFrequently, in many of the states, over 50 percent or more of the members are appointed by bar association groups, and there's evidence out there that they tend to lean towards the liberal side. Now, if you favor that, that's fine. But there's no way to get rid of those folks, and retention elections provide no meaningful account. Ninety-nine percent of retention election judges are re-elected.

  • 10:37:28

    REHMScott Gaylord, he is associate professor of law at Elon University in North Carolina. We'll take a short break. When we come back, we'll open the phones.

  • 10:40:04

    REHMAnd it's time to open the phones first to Houston, Texas. Good morning, Jeff. Welcome to the program.

  • 10:40:13

    JEFFHi, Diane. Thanks for taking my call.

  • 10:40:15

    REHMSurely.

  • 10:40:16

    JEFFI think that Scott Gaylord has touched on the point that I wanted to make which is -- or raised, which is that, you know, we talked about all the negatives of electing judges, but to me, the -- either the merit selection of judges or just the appointment of judges, you know, at the federal level, using the president to nominate and the Senate to confirm, that hasn't taken bias or politics out of judicial decision making.

  • 10:40:46

    JEFFThere may not be the same kind of monetary bias that you see with campaign contributions, but clearly, both parties fret about whether the other party's appointees are going to stay for a life tenure, making either liberal or conservative decisions. And at the end of the day, if I'm going to have judges deciding our public policy and rewriting our laws and our Constitution, well, frankly, I'd rather them be elected. That's -- I -- if they're going to act as a super legislature, then I'd like to elect them, just as I do with the legislature.

  • 10:41:21

    REHMIan.

  • 10:41:21

    JEFFThanks for taking my call.

  • 10:41:22

    REHMSurely.

  • 10:41:23

    MILLHISERSo a few points. First of all, I think it's important to distinguish between different types of appointment. I agree that in the federal system, the process where an elected president nominates judges and an elected Senate confirms the judges, that leads to ideological judges. We have not seen as much of a problem with that in states that have merit selection. And, you know, to go to Scott's point about bar associations, the proof of the pudding is in the eating there.

  • 10:41:56

    MILLHISERAnd if it were actually the case that bar associations were stacking these courts in cases where we have merit selection boards with ultra-liberal appointees, the Chamber of Commerce wouldn't be as pleased with these merit selection judges as they have been. So I think that there are ways to mitigate ideology even if you can't eliminate it entirely from the bench.

  • 10:42:20

    REHMAll right. To Cleveland, Ohio. Good morning, Bill. You're on the air.

  • 10:42:25

    MR. BILL O'NEILLGood morning, Diane. My name is Bill O'Neill. I'm the nominee for the Supreme Court of Ohio in Ohio. And I love to hear your program because you've really hit, I think, on the key issue, which is the appearance of impropriety. Six years ago, this -- The New York Times came in and did a study in Ohio, and they found that one justice voted in favor of his donors 91 percent of the time. And we're not saying that those are crooked decisions. The problem is the public's perception of the judiciary is badly damaged, and that's where we're at right now in Ohio.

  • 10:43:03

    REHMScott Gaylord.

  • 10:43:06

    GAYLORDCertainly there can be a fret under an election system. We have big campaign contributions. I mean, part of it is obviously educational, to make sure that people know what is going on, and part of that then is through a campaign process where that type of information can get out to the people. I mean, one of the key things, I think, is that at least those economic or the financial contributions or independent expenditures and not actually contributions to a particular candidate can be monitored.

  • 10:43:33

    GAYLORDI mean, that's how the CEO of A.T. Massey Coal -- people knew he gave $3 million because of disclosure requirements. The political associations, as the prior caller mentioned, that can come up through an appointment or a nominating committee process are much harder to regulate or monitor and then to change. There's no meaningful way to understand what those will be. And, in fact, there is evidence that, at least in Missouri and Tennessee, those types of nominating commissions has led to a liberal judiciary.

  • 10:43:56

    GAYLORDProf. Brian Fitzpatrick out of Vanderbilt has done a study showing that those committees tend to appoint a much higher rate of "liberal" or Democratic judges than they do conservative, far different from the voting patterns in those states for their state and federal representatives.

  • 10:44:13

    REHMHere's an email from North Carolina from Michael, who says, "I live in a very conservative area of North Carolina. Judges are supposed to be nonpartisan and impartial, yet all the ads for their election say conservative or Republican. I have a problem with the fact that voters have no idea of judicial experience or past rulings and instead vote simply because of the judge's self-described political beliefs." And to you, Gaylord.

  • 10:45:00

    GAYLORDWell, I think in that case, I mean, certainly there's an argument to make if you're going to have elections that they shouldn't be nonpartisan, that it helps people to have information that they are, in fact, partisan elections. And I don't think it's a situation where the view -- the nonpartisan elections are supposed to be that a judge doesn't have any political views. I mean, as the Supreme Court has said, we wouldn't want our judges to be a complete tabula rasa, a blank slate in the area of constitutional law or interpretation.

  • 10:45:24

    GAYLORDThat, in fact, would probably disqualify people from the judiciary. We all have views on different issues and, at the extent of those views, deal with issues about the judicial function, constitutional interpretations, statutory interpretation. It's good for people to know that. And I agree with the email that we need more information, not less. I know that the public financing system in North Carolina, the candidates get basically $240,000 to reach the ninth or 10th most populous state, a hundred counties.

  • 10:45:52

    GAYLORDIt's virtually impossible to do it with that amount of money, and the independent expenditures that come in can help spread that message. Now, it needs to be monitored. We need to watch out and make sure that it's not corrupting. But on a whole, the money can give more information and enables people to learn more about the candidates and make more informed decisions at the voting booth.

  • 10:46:10

    REHMAll right. To St. Louis, Mo. Good morning, Jim.

  • 10:46:14

    JIMGood morning, Diane.

  • 10:46:15

    REHMHi.

  • 10:46:17

    JIMI'm a trial attorney. I've been practicing law in the state of Missouri for 51 years, and I have practiced and tried cases in state courts before juries and federal courts before juries. I've had cases before the Federal Court of Appeals and the Missouri appellate courts and the Missouri Supreme Court. The Missouri Court Plan is run by three citizens appointed by the governor, three lawyers elected by bar associations and one judge. It covers the city of St. Louis, which is independent and is not a county.

  • 10:46:55

    JIMSt. Louis County, Jackson County, which is Kansas City, and Green County, which is Springfield, Mo., all the other counties have partisan elections. The problem with having judges not go in this system and have a six or 12-year term guaranteed, so they don't have to worry about getting re-elected, is that I have seen, of course, as I practiced for 51 years -- I've gotten older -- the new judges do not know the necessary evidentiary rules for jury trials.

  • 10:47:30

    JIMThey're given courses by the Supreme Court, but they just aren't in office long enough -- they're going to be in for one term -- to be able to learn the evidentiary rules because the majority of cases are not appellate courts or the Supreme Court. And, therefore, by having the judge in for terms of six and 12 years, you get the benefit of a judge picking up what they are supposed to do in jury trials.

  • 10:48:02

    REHMCharlie Hall, do you want to comment?

  • 10:48:05

    HALLWell, one thing I want to say just in fairness, all systems produce a range of judges, some qualified, some less so.

  • 10:48:11

    REHMSure.

  • 10:48:12

    HALLSo I don't want to make any claims for any one system there. I think, though, one of the things you're getting at is judges have a very unique role. We expect them to have a tremendous amount of training. And unlike any other elected official, yes, they should have philosophies or respecting the philosophies, but one thing which is really unique, which is unlike other elections, in the end, judges handle disputes. If any one of your listeners goes into court, they have a right to expect that that judge is not playing favorites, you know?

  • 10:48:46

    HALLAnd I think most of us can imagine, if we're in for a small lawsuit or a divorce and you learn on the day of the trial that one -- the other side's lawyer kicked in $5,000 to elect the judge and your side hasn't, your lawyer hasn't, would you want a different judge? I think most Americans would say yes.

  • 10:49:01

    REHMCharlie Hall, he is editor of Justice at Stake. That's a nonpartisan national campaign working to keep courts fair, impartial and free from special interest agendas. The whole issue of the various ways that justice are selected or appointed or elected gives me pause because you don't know how it's going to turn out depending on which state you're in. In other words, it's not a constant across the country. I realize, going back in history, this has evolved. But it does seem to put citizens at something of a disadvantage because, as you said earlier, people don't really pay that much attention.

  • 10:50:04

    HALLWell, I like Ian's analogy earlier of electing doctors.

  • 10:50:07

    REHMRight.

  • 10:50:08

    HALLAnother one might be electing generals.

  • 10:50:09

    REHMSure.

  • 10:50:10

    HALLNow, I think one of things we have to realize is there's a poll last year at the height of the health care dispute, and 20 percent of Americans could name John Roberts by name. One percent could name all nine U.S. Supreme Court justices. So this is the most famous court in America handling the -- maybe the biggest case ever, most publicized case ever. People typically don't think of judges as elected officials. Polls show they are enormously frustrated at how little information they have.

  • 10:50:43

    HALLProf. Gaylord's own school, Elon, did a, you know, poll in 2009, and 43 percent of people in North Carolina didn't even know how judges are selected. So when you have that big an information gap, it really -- I think one thing your listeners can take away is is there an ideal, perfect, Plato-Republic way of selecting judges? Probably not, but it's not a strong form of democracy.

  • 10:51:10

    HALLIt certainly does not come close to the ideal that Prof. Gaylord is talking about. The appointment systems, whatever theoretical arguments they are, there's two things to be said. One is the business groups, which should be the ones you'd expect to be dissatisfied, actually are happy with the appointment systems. And the other is, in most cases, these appointed judges actually face the voters many, many times.

  • 10:51:34

    HALLThey go before them in retention elections. And even though, in fact, most are re-elected in very well-publicized cases, sometimes they're not. So there is an important check and balance that the public (unintelligible).

  • 10:51:45

    REHMIan Millhiser, the Center for American Progress along with the Brennan Center did this study, I gather. What was your aim? What do you hope to accomplish by having done this study and publicizing it?

  • 10:52:01

    MILLHISERI think that we want a world where, you know, as I said before, ideally, there aren't ideological judges and there aren't self-interested judges. Most of what we focus on with the work we've done to this point has been on eliminating self-interest. And especially after Citizens United, the influx of money, you know, if there's wasn't Citizens United, if we had robust campaign finance reform, I think we could talk about whether or not judicial elections make sense.

  • 10:52:30

    MILLHISERBut there are some evidence that even in the absence of that kind of money -- there was a Berkeley-Loyola study that came down a few years ago, examined about 270,000 cases, and it found a spike in the severity of criminal sentences of about six months in the quarter or two leading up to an election. So when the judge is worried that they are going to have to be on the ballot, all of a sudden they start handing down harsher sentences, not because the people before them have committed worse crimes but because they're worried about getting accused of being soft on crime.

  • 10:53:02

    REHMSo your ultimate goal is to change all systems to a public finance approach?

  • 10:53:11

    MILLHISERI think that there are many possible solutions. I don't know that I'm willing to say at this point I know the one, but I think that the enemy that we want to target is ideological judges, self-interested judges.

  • 10:53:24

    REHMIan Millhiser of the Center for American Progress and you're listening to "The Diane Rehm Show." To Milford, Del. Kathy, you're on the air.

  • 10:53:37

    KATHYThank you for taking my call.

  • 10:53:38

    REHMSurely.

  • 10:53:39

    KATHYI'm wondering what the opinion is of the Delaware system for the Delaware courts. It's a state and court balanced appointment system with a very competitive vetting system that comes before that by a nomination committee. It seems to work well. We don't -- it just -- I'm just wondering what the opinion is.

  • 10:54:06

    REHMSure. Charlie.

  • 10:54:08

    HALLInteresting question. My recollection is it's within the top five in this Chamber survey that I've been referring to. I think at times it actually kicked between first and second. It's actually got some interesting features. In Delaware, under the Constitution or under the system, there's requirement that both parties be represented on the court, which is a unique feature, I believe. But I think, again, it's a good example of a court that can be trusted. I do want to say one thing about elections because this -- a lot of times these discussions that go back and forth are elections versus appointments.

  • 10:54:44

    HALLIf somebody believes strongly that judges should be elected, which is, you know, certainly the position the professor has taken today, there are lot of things that can really take away this issue of self-interest that Ian has talked about. Public financing is one thing that can help. We've talked about recusals, strong requirements, that if there's an appearance of an improper relationship, then a judge should step aside.

  • 10:55:08

    HALLPolls show overwhelmingly, 90 percent of the people feel that judges should step aside and not hear cases. And then, finally, you know, we look at the disclosure of campaign expenditures, which is really also one issue that's growing. Not only is there are more money coming in from special interest, but more are coming in through these independent expenditures, so we don't know where the money is coming from.

  • 10:55:32

    REHMScott Gaylord, finally, in the few seconds we have left, do you believe the system is fine as it is or requires any change whatsoever?

  • 10:55:47

    GAYLORDWell, I think in large measure and in one of the neat features is that we do have multiplicity of different methods across the nation, and I think it's incumbent on citizens and each of the states to really monitor and to get involved and to learn how important the judiciary is, and then watch and see what's going on. In the wake of Citizens United, if there is a threat from increased contributions, then it's important to monitor that to have strong disclosure requirements and to track the funds.

  • 10:56:12

    GAYLORDAnd in the past, in the cases where there's been a lot of spending, as several that, you know, Charlie has mentioned, people know who the donors are, and those can be made known to the public generally and so that they can have that affect or influence their votes accordingly. But to have that check is an important one, and I'm more concerned about unelected commissions that lack the accountability.

  • 10:56:30

    GAYLORDAnd again, retention elections, there are big profile cases, like, out of Iowa, the same-sex marriage. But in 99 percent of the cases, those judges are re-elected, and it's not a meaningful check on accountability.

  • 10:56:40

    REHMWell, clearly, there's a lot of opinion out there. I thank you all for bringing yours to the table. I have the feeling this is something we'll return to. Scott Gaylord of Elon University School of Law in North Carolina, Charlie Hall, editor of Justice at Stake and Ian Millhiser of the Center for American Progress, thank you all.

  • 10:57:12

    GAYLORDThank you.

  • 10:57:13

    MILLHISERThank.

  • 10:57:13

    HALLThanks.

  • 10:57:13

    REHMAnd thanks for listening. I'm Diane Rehm.

  • 10:57:16

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Megan Merritt, Lisa Dunn and Rebecca Kaufman. The engineer is Tobey Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information.

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