The Citizens United v. FEC (2010) case opened the floodgate for money in politics. The decision redefined money as speech and removed limitations on the amount of money corporations could contribute to political campaigns. As a result, elections have grown more expensive with every passing year. The 2018 midterm elections alone reached an all time high of $5.7 billion spent. While much focus has been paid to the cash streaming into federal campaigns, little has been said about the increasing costs of state-level judicial elections. This growing pool of money threatens to polarize courts all over the country in the same fashion as it has done with electoral politics. However, judicial selection committees may offer a way to remove corruption from our judicial election process.
For a myriad of reasons, the current system for selecting judges is broken. Local judges are significantly cheaper to influence and still hold lots of power. There are plenty of local court judges that make life changing decisions every day, including state Supreme Court Justices. Corporations and big money donors are overwhelmingly concerned with this category of judges because it offers the perfect middle ground between the district and federal level.
Local judges are appointed by election in 22 states, and in 2016 alone, 33 states held state Supreme Court elections. Although elections are traditionally a surefire way of increasing accountability, experience has taught us that the nature of judicial seats makes them a bit more complicated. Significant decision making power does not mix well with low visibility.
Since The Citizens United decision, spending in judicial elections has been steadily rising. According to the Brennan Center, 2016 saw the second-highest recorded spending on judicial elections, topping out at over $70 million. From these $70 million, nearly 40% of donations came from PACs, and unfortunately, there is no practical way to tell who is supplying the funds. Consequently, we have elected potentially biased judges without any idea of who funded their campaign.
However, we do know this much: the donors are large businesses seeking less regulation in their everyday affairs. Whether by allowing them to dump waste, skirt antitrust laws, or underpay their workers, these companies seem to think that having a friendly judge on the bench is worth their investment. The type of cases that companies care about are often very technical and challenging for anyone except the most knowledgeable experts. As a result, few people pay close attention to these cases, even if they end up having significant implications for their lives. Poor voter knowledge combined with substantial decision making power makes the ideal arena for large donors. Due to little interest by the general public, any form of accountability for judges is practically impossible. Our current judicial election system is simply not viable in the aftermath of The Citizens United ruling.
Furthermore, the move towards less accountability has only been accelerated in recent years due to a growing number of attack ads funded by PAC donations.
Americans tend to view the criminal justice system not as a mechanism to rehabilitate individuals, but as a punitive one meant to lock up people for as much time as the law will allow. The logic is clear, even if somewhat faulty. After all, people don’t want to live near criminals who threaten their safety and wellbeing. The next logical step is to vote in judges who will lock up every criminal that enters their courtroom and keep them there for as long as possible.
The problem with this punishment maximizing logic is that not every case is clear cut, and not every case warrants the maximum penalty. As any judge will say, deciding cases is difficult, and every case does not result in the correct outcome. While usually this is just chalked up as a part of the job, the issue is unavoidable for a politically vulnerable candidate. Judicial candidates run on the “tough on crime” rhetoric that has dominated American politics for the last half-century. Although rare, if a person who was released by a judge commits a heinous act, that judge’s political opponents will seize the opportunity to portray it as an example of poor judgment. Therefore, judges simply decide not to take the risk and, when pressed, err on the punitive side rather than the rehabilitative one.
Allowing governors to nominate and appoint judges seems like sufficient insulation, but it simply would act as another round of partisan politics. Instead, judicial selection committees should make educated decisions about the most qualified candidates.
Judicial selection committees would investigate and vet candidates for judicial seats and then use that information to create a nonpartisan shortlist of judges, which could then be sent to the governor to begin the nomination process. They would be composed of experts in the legal field with a diversity of interests, ensuring that the committees have a racially and culturally diverse composition of lawyers, local leaders, prosecutors, and public defenders.
As it currently stands, judicial selection committees have been wildly successful in states where they are used. Still, to ensure the process remains nonpartisan, we must do more to insulate committees from outside influence. In six states, the governor appoints all committee members, raising questions over whether the process is truly independent. To avoid this problem, the Brennan Center has recommended an outline for choosing members. A majority of commissioners should be appointed to serve staggered terms with clear term limits by a bipartisan group of elected officials across the different branches of government.
The process promises to be transparent and accountable with clear ethics rules to guarantee committee members don’t make deals behind closed doors. Furthermore, the introduction of selection committees means judges will no longer run for election and, therefore, do not need to rely on corporate donations or polarized messaging.
It may very well be impossible to eliminate all bias through these committees alone, but according to the American Judicature Society, judicial selection committees show a strong trend towards reducing politically motivated appointments. Selection committees can reduce bias because judges cannot rely on big donors’ money and are also not bound to the governor that appointed them.
Our nation’s judicial system is full of imperfections that have real consequences for those who must interact with it. Dark money continues to corrupt our judicial system and in its current form, the judicial institution is anything but democratic. Nevertheless, we have a chance to change that. Judicial selection committees offer a solution in a world that continues to be negatively impacted by the effects of corporate influence. By placing more safeguards between the law, corporate greed, and politics, we can create a system that helps iron out injustices in society instead of exacerbating them.