By Robert Heim
Imagine a defendant ordered to pay $50 million in damages. He appeals to the state's highest court. He throws $3 million into a campaign to seat a favored judge on that court. The damage award is wiped out.
Last week, in a West Virginia case known as Caperton v. Massey, the U.S. Supreme Court looked at those very facts and called it an extreme case - so extreme that the judge's failure to disqualify himself offends the Constitution.
So what does this mean for those of us who don't have $50 million at stake? A lot.
There's no question that, regardless of the amount of money involved, if one side of a case contributed to a judge's campaign, the other side will worry about it.
Some years ago, I was told of a lawyer who was sitting with a client in court, waiting for a newly assigned judge to hear his case. When the judge appeared, the lawyer whispered to his client that he was concerned, because the opposing lawyer was on the judge's campaign committee and had contributed to the campaign. After a pause, the client whispered back, "So why didn't you contribute?"
This cynical colloquy says much about the perception created when our system essentially mandates that judges and money be mixed. It was unfair to the judge as well, who was likely unaffected by the identity of the lawyer or the contribution. Nonetheless, the perception was there.
The presence of money in judicial elections may not, in most cases, violate the Constitution. But it violates something just as vital: our citizenry's trust in the impartiality of those who sit in judgment.
If judicial candidates have to run in contested elections, they have to raise money. From whom? Lawyers and others who expect to be appearing in court, naturally enough. Hence, electing judges creates perceptions that undermine the system.
There is a simple solution to the problem of money in judicial elections: Get judges out of the fund-raising business by changing the way we choose them.
Judges are different from other public officials. Unlike governors, mayors, and senators, they do not represent constituencies. They must judge cases regardless of personal bias, popular opinion, and campaign rhetoric. This is different from what we expect of other elected officials.
So-called merit selection would combine the features of election and appointment of judges. It would add an initial review by a nonpartisan, citizen-based commission that would screen candidates and recommend the most qualified to the governor for nomination. The governor would nominate from the list, and the nominees would be subject to Senate confirmation.
After an initial term of four years on the bench, and every 10 years after that, the judge would stand before the public in a nonpartisan retention election. Voters would cast ballots saying yes or no to keeping the judge on the bench.
Merit selection would focus on the qualifications of judicial candidates. It would eliminate the unimportant but often decisive factors of the current system, such as ballot position, a "good name," where one lives, and talent for fund-raising and campaigning. Because merit selection eliminates the need for candidates to win political-party support or raise large sums of money, it would open pathways to the bench for qualified men and women of all races, backgrounds, and experiences.
You might wonder why we did not long ago give up on contested judicial elections, as most states have. Some of our legislators want to change the system. Some are opposed. But many are largely indifferent.
Their response goes something like this: "Sure, as a matter of good government, merit selection is the right way to go. But merit selection is not a burning issue with my constituents, most of whom never see the inside of an appellate courtroom. On the other hand, there are powerful groups who like electing judges, and it's difficult to be on what they think is the wrong side of the issue."
Bills that would require merit selection were recently introduced in Harrisburg. Let your legislators know you care.