Thursday, February 22, 2007

Public Funding for Judicial Elections

I missed last week's lawyer's chapter event on money in judicial elections, but yesterday's Seattle Times had a piece by Bruce Ramsey discussing it - and the topic at large.
Seattle attorney Jenny Durkan spoke for the bill at a recent meeting of the Federalist Society, arguing that all the mudslinging undermines the public image of an impartial court.
Ah, yes. "Mudslinging." Yet another way to say "mudslinging" is "stuff that may be true and relevant but makes my guy look bad." And still another way to pronounce "mudslinging" is "freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Up for discussion was a pending proposal in the state legislature to allow public funding for those elections, supposedly because they would then be more high minded, less "political," and would allow each side to look "impartial." Whatever that means. According to Ramsey:

Under this proposed system, if you were an unknown figure challenging a sitting justice, you would essentially be forced to file as a private-sector candidate. You would raise your own money. When your spending topped $84,836, for every additional dollar you spent, the government would cut your publicly funded rival (or rivals) a check for the same amount. If you spent $50,000 on a fundraiser that grossed you $60,000, it would be a gain of $10,000 for you, but your opponent would bank a $50,000 check, because that is what you spent.

If a group friendly to you spent $100,000 to slime your government-financed opponent, your opponent would get a check for $100,000. If a group friendly to him did that to you, you would get nothing.

The government would match the spending on your side up to $678,691 in the primary and the same in the general election, if there remained a contest. Your opponent could continue collecting beyond $678,691 if there were any money left, and if there weren't, he would be freed to solicit his private donors. By that time, your private donors might be tapped out.
This, of course, solves none of the "problems" that are being complained about. Mud would still be slung, sides would be taken, "private money" and "special interest groups" (i.e., politically astute and engaged citizens exercising their Constitutional rights) would still spend hundreds of thousands of dollars. Washington Supreme Court Justices would still be linked to the people and groups who endorsed, supported, and funded their campaigns.

That's democracy. And democracy isn't a "problem" I want to "solve."

What this is really about, of course, is that liberal members of our liberal court actually had to fight for their seats last November, and there were real discussions about issues of judicial activism, the role of the high court, and the extraordinary power of the Justices. And liberals like Durkan and state Senator Oemig (sponsor of the "reform") don't for a second want their hold over the judiciary to be even threatened to be threatened by some moron redneck out in Moses Lake who doesn't even listen to NPR. The concern over the horrors of actually allowing campaigns to influence voters has nothing to do with methodology and everything to do with content of political speech and ideology.

Personally, this is why I think judges should be appointed by the Governor. No judge who must stand for election and re-election can truly look "impartial." The way to insulate the judiciary from political influence is to not let them be politicians. Otherwise, we simply elect a redundant Super-Legislature increasingly signaling their willingness to use their power to mandate their personal policy agendas.

So long as we vote for judges, the state judiciary will be a political (even if remaining officially non-partisan) branch of the government. For better or worse, the people of this state have chosen a political method for checking the power of the judiciary. Until we amend the state Constitution, we need to accept that method of accountability, with all the warts that go with it - including all those dirty, biased, and very partial exercises of our First Amendment rights.


Juvenal said...

Amen. The only thing worse than electing judges is public financing of judicial elections. As you said, it'll get rid of none of the problems and just provide another advantage to the establishment (incumbents). Its amazing how in this through-the-looking-glass world we live in, the only aspect of speech we're not willing to protect with the First Amendment is exactly that particular aspect of speech the First Amendment was intended to protect. We have all the nude dancing, interpretive dance, and good-clean-porn that we want, but we're gradually outlawing robust and vigorous debate in the political arena ...

Cato said...


If we went to appointment of Justices, what term lengths would you want to see? They'd need to be long enough to provide consistency. What about appointment by the Governor and then an election every 6 years wherein they have to get a majority of the votes to keep their seat?

PubliusRex said...

If we went to appointing judges we'd hear about cronyism or something else. You can't take politics out of the law - anyone who saw the Alito confirmation hearings knows that. Wolcher is right on about that.

That said, I don't see why my dime should pay for anyone's election bid. Taking donor money out of politics doesn't demand public money being put in.

Orrin Johnson said...

Cato, I wouln't like to see term lengths at all. At least not any that end in another election.

Probably the BEST case scenario is where there's no incumbent - why only allow incumbents to stand for election? Do you mean like a no confidence vote?

I think the federal system is the least imperfect design yet devised for maintaining an independent judiciary. It certainly carries with it its own politics and pitfalls, but it is a political scenario that still keeps the state of the judiciary in the hands of the voters, via the Senate and the President, with a necessary insulator.

The only major correction I'd make is to remove the ABA's vetting role, at least its current monopolistic one.

I would like to see state versions of the federal system - appointed by the governor with confirmation by the State legislature (either house, although I hapen to think that bi-cameral legislatures for states are kind of silly). Justices of the Peace and/or other municipal level judges could be appointed by city or county councils for some set term.

Judges SHOULD be a political ISSUE - that is, the pros and cons of certain kinds of judicial philosophies, decisions, etc. should be part of the public debate (more than it is now). But when judges themselves start being politicians, that's when the danger becomes too great that decisions have more to do with winning votes than upholding the law.

Cato said...


I was indeed thinking about no-confidence sort of elections. If the justice lost an election, the Governor would have to find someone else. I'm mostly worried that with our much more limited pool of potential justices, life appointments are riskier. There's more likely to be less qualified people put up to the office than at the federal level, and I'd like there to be a way to get them out if they're a real problem.

Orrin Johnson said...

You can create a system to "get them out" - maybe 18 year term limits (as has been proposed federally). But I frankly reject that we don't have enough people to be judges. If anything, a lifetime/long term appointment would lessen the numbers required since turnover would be less.

And an election without an opponent? How would an incumbent ever lose? THen the only people "running against" the judge would be the hated "special interest groups"! If we do elections, I think it's important that they be real elections with any constitutionally qualified citizen able to challenge an incumbent.

In any system, there will be bad judges, and those who overstay their competence. But I would prefer that we not add to that evil by inducing judges to appeal to popularity via standing for election. Insulate them from the voters by one degree. Let's hold politicians accountable for the judges they appoint, but let's not make judges themselves politicians.