Judicial Elections: How to Trust in Alabama State Courts
Politics taint our state courts in ways none of us would have predicted even a few short years ago.
The results threaten perceived fairness of courts dispensing justice. Recently, the Supreme Court of the United States ruled on a case involving a judge who received a $3 million campaign contribution and then ruled two times in favor of the donor.
The American Bar Association is optimistic that the high court’s ruling may lead to further examination of the topic of judicial election reform, not only in Alabama, but also in the 38 other states that hold judicial elections.
State court judicial election campaigns are awash in special-interest money and heated political rhetoric. Even many judges say this volatile combination can influence how courts rule in cases. The vitriol in state court elections leaves a sour taste with voters and undermines public confidence in getting a fair judicial shake. It’s no wonder the public is concerned.
Previous high court rulings have made it difficult to shield judges and judicial candidates from partisan pressure to express opinions about issues they might confront on the bench, issues that we expect judges to approach with open minds. One state Supreme Court justice compared the impact of judicial election controversies to the “crocodile in your bathtub.”
If all this has the feel of an impasse, it doesn’t have to. Reforms can reduce improper influences on how we select our judges. What has been lacking is the political will to implement change.
One way to pull money out of campaigns is to simply end the campaigns. The ABA has long supported merit appointment systems for our judiciary. Opponents object that appointment simply moves the political influence to a different level. Though politics can’t be removed entirely from any selection system, appointment is far preferable to elections. This is especially true when judicial appointments are guided by a public process involving diverse citizen commissions. Panels of lawyers and nonlawyers review the professional qualifications of prospective appointees, evaluate the fitness of each and make recommendations for appointment.
Another approach is to retain judicial elections but shun private fundraising and the politics that goes with it. North Carolina adopted a voluntary public financing system for appellate judicial campaigns in 2002. A 2005 poll showed 74 percent of voters wanted to continue the system. The share of campaign money that came from lawyers, special-interest and political committees dropped from 73 percent in 2002 to 14 percent in 2004, the first general election after the system was instituted.
At minimum, each state should ensure disclosure and transparency of the financing of judicial campaigns. When the public knows how much money is coming from what sources, it can assess whether that crocodile in the bathtub is likely to bite. And judicial recipients may have a greater incentive to remove themselves from hearing cases when the public knows a party was a major donor to the judge’s campaign.
Despite the enormous enthusiasm our citizens demonstrated for the 2008 presidential election, confidence in institutions of government is low. But we can make it better.
For the sake of our democracy, we should work for change. The ability of our courts to apply the law fairly, and our ability to believe that they do, are what stand between our society of laws and a society ruled by those who have the means to contribute to judicial campaigns. We want our courts to be accountable for making fair decisions. We must encourage Alabama leaders to implement reforms so all can trust that our courts are, in fact, fair. We deserve no less.
H. Thomas Wells Jr. is president of the American Bar Association and a partner in the Birmingham office of Maynard, Cooper and Gale.
Published in the Birmingham News.