justice for sale

udicial Election and Judicial Independence Concerns...Stepping Up to the Plate  a memorandum by Colleen Danos who is......???  November 10, 1998

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· Colleen Danos is an analyst at the National Center for State Courts in Williamsburg, Virginia. Read a longer, earlier version of this memo.
November 10, 1998

The protracted American debate in the states over which method of judicial selection is best continues, and in light of current threats to judicial independence, judicial selection method shortcomings and reform efforts are, with increasing frequency, the focus of political discussion and study -- underlying the judicial selection debate is the unspoken tension within the states over who should choose judges.

Judicial elections are becoming more heated and controversial. Almost every issue of public importance, complexity, and controversy is or will be decided in the state courts and the impact on perceived stakes has significantly raised the level of political and emotional intensity of election. However, voters suffer from a lack of access to information about judicial candidates that becomes even more threatening as judges are increasingly targeted for defeat in single-issue campaigns. At the same time, information on the costs of running for elected judicial office shocks and disturbs public sentiment. Spending and fundraising in the hundreds and millions of dollars per judicial candidate at the state supreme court level has been reported. Judges in forty-two states currently stand for partisan, nonpartisan, or retention election. Of immediate concern are: what effects do the election of judges have on judicial independence and, most important, what can be done to mitigate the negative effects of the election of judges upon the independence of the judiciary?

Democratic issues at the head of judicial electoral concerns are, in many ways, a microcosm of national electoral concerns affecting the legislative and executive branches of government. Pressing to be addressed at the national level are the big issues of campaign election finance reform and campaign ethics; however, the public does not have confidence that the federal government will truly address campaign reform issues. A recent poll commissioned for Fox News found that the public believes it is more likely "to see Elvis" than to see real campaign finance reform.

According to state public opinion polls, citizens are concerned about the effect of campaign contributions on the independence of our judiciaries. The 1998 Pennsylvania Special Commission to Limit Campaign Expenditures found that 59 per cent of Pennsylvania's registered voters thought that too much was spent on judicial campaigns When informed of amounts actually spent, the figure jumped to 81 percent. This reality combined with low levels of public trust and confidence in the judiciary attests to the need for judicial electoral reform with an emphasis on voter education and improving access to voter information and, while ". . . no campaign finance reform, however attractive, can ever work like a magic bullet, much can be done to improve the current situation. Recent ". . . reform initiatives in a number of states including Alabama, Kentucky, Michigan, Mississippi, Ohio, Pennsylvania, Texas and Washington have been developed to address problems in funding and related conduct of judicial elections." Rather than make no attempt to improve the present situation or wait for state legislatures to map out judicial election reform, the time may be right for state judiciaries to step up to the plate and genuinely address judicial selection and judicial independence concerns. The rewards to elected state judiciaries, democratic processes, and to judicial independence could be tremendous.

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