Dec 18, 2017 | 7 min read

Dark Money Electing Judges Is Undermining Judicial Independence

A new report finds that judicial independence – a bedrock of our civil and criminal justice system – is eroding and under attack. Surprisingly, 38 states elect supreme court judges, who render the final decisions on constitutional issues, legislative and regulatory interpretations, and criminal charges. These decisions are often, quite literally, life and death decisions.

These decisions are supposed to be made solely on the facts and the law and without pressure of outside influence weighing the scales of justice for or against one of the parties. Our judges are supposed to be free (and isolated) from such influence.

Increasingly, they are not.

38 states elect supreme court judges. The same dark money interests that drive Congressional races to multi-million dollar contests are now determined to influence judicial elections. This dark money is funding anonymous television ads that “are strikingly negative in tone” and “a staggering amount of money [is] from secret sources.”

The U.S. Supreme Court’s 2010 Citizen’s United decision empowered outside interests to make congressional races multi-million dollar contests – and many of the same interests have now also flooded state supreme court elections at record levels, and impacted more justices and courts than ever before. In the 2015-’16 cycle, 27 justices were elected in races that cost more than $1 million. The previous high was 19 justices in 2007-’08. Meanwhile, Pennsylvania set an all-time national spending record for state supreme courts: the key swing state attracted $21.4 million in 2015, with control of its court up for grabs.

– Alicia Bannon, How Secretive Money Is Influencing the Judicial System (Time.com)

As Bannon noted, this kind of arms-race spending “gives wealthy interests tremendous power to influence the composition of state court”, often with direct implications on pending cases. In essence, many of the dark money spenders are litigants trying to elect the judge hearing their claim. This kind of pressure causes judges – consciously or not – to base decisions to please donors or avoid nasty attack ads in the next election cycle.

A few years ago, Justice Sandra Day O’Connor – appointed by President Ronald Reagan and the first female member of the United States Supreme Court – spoke to students at the University of Missouri School of Law:

If judges are subject to regular and competitive elections, they cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects. As the late California Supreme Court Justice Otto Kraus described it, ignoring the electoral pressure would be ‘like ignoring a crocodile in your bathtub.'”

– Sandra Day O’Connor, The Essentials and Expendables of the Missouri Plan, 74 Mo. L. Rev. 479, 487 (2009).

Retired Supreme Court Judge Ray Price (my old boss) told the Carriage Club in Kansas City: “What these people [dark money donors] really want is the direct election of judges. They think they can buy judges. That repulses me. I think that’s flat wrong.”

Me too.

The Missouri Plan

Each year, there are bills or petitions filed to open Missouri appellate and supreme court judges to contested elections. This is a bad idea. Judges should be free to decide cases only on the facts and the law and free from undue influence of large donors or public outcry about controversial decisions.

The Missouri Plan – a plan in which judges are selected for service based on non-partisan merit selection – was enacted after Missouri citizens voted to amend the constitution in the 1940s. Since then, the Missouri Plan has been expanded – to include the metro areas around St. Louis and Kansas City and, more recently, the Springfield area (Green County). Numerous editorials have been written in support of the Missouri Court Plan and against the proposed changes that would insert politics into the courtroom.

The Missouri Plan is one for the people and by the people. The Missouri Non-Partisan Court Plan was adopted because citizens were fed up with political cronyism and politics in the courthouse. Namely, notorious “Boss Tom” Pendergast, who ran the Democratic Party in Missouri during the 1920s and 1930s, also controlled the judiciary.

Rush Limbaugh’s grandfather — “the original” Rush Limbaugh — successfully led the citizen’s initiative petition drive to end partisan control of the judiciary in favor of merit selection of judges. Under the Missouri Plan, appellate judges and trial judges in metropolitan counties electing to participate in the Missouri Plan, judges are selected by a commission consisting of 3 attorneys elected by members of the Missouri Bar Association; 3 citizen members appointed by the governor (serving 6-year staggered terms); and a currently sitting judge. The panel selects from those submitting applications themselves or nominated by others for the vacant position. The process has worked essentially the same way for more than 50 years and led the country as more than 30 other states have adopted the Missouri Non-Partisan Court Plan in one form or another.

Because of the Missouri Plan’s more than 70 years of success, a broad coalition has formed in support of the Missouri Plan and to keep politics out of the courtroom. This coalition includes not only plaintiff trial lawyers (like me), but also defense lawyers, prosecutors, “biglaw” firms, small and solo practice attorneys, current and former Supreme Court judges appointed by both Democratic and Republican governors, and citizen groups including AARP Missouri, Committee for Economic Development and local Chambers of Commerce including the Blue Springs Chamber of Commerce and the Greater Kansas City Chamber of Commerce.

Partisan politics and campaign fundraising have no place in our judicial selection process. I make that statement both as head of Kansas City’s largest regional business organization and as a longtime attorney.

Under the Missouri Court Plan, the selection process is more likely to produce qualified and competent judges, leading to a more stable, efficient and consistent judicial system, a system on which the business community and the general public rely.

– James A. Heeter, President and CEO of the Greater Kansas City Chamber of Commerce

Missouri citizens have a history of supporting the Missouri Court Plan — beginning with the citizen initiative to create the plan in the 1940s. Since then, the Missouri Plan has been expanded – most recently in 2008 when Green County (Springfield area) voted to replace election of local trial judges with merit selection under the Missouri Nonpartisan Court Plan. Numerous editorials have been written in support of the Missouri Court Plan and against the proposed changes that would insert politics into the courtroom.

According to the web site Justice At Stake, 71% of Missourians were happy with the current judicial selection system in a 2007 survey. Even more, 73%, wanted judges to be independent of elected officials like the governor and state legislature. Only 1-in-50 respondents saw changing the way judges are selected as a top priority for state government.*

A survey by the conservative Federalist Society that same year found 68% of respondents had trust and confidence that the Missouri Supreme Court based decisions on the law rather than on political beliefs.

An apolitical, independent judiciary comprised of qualified judges is critical to upholding the rule of law and individual rights of Freedom and Liberty. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democratic vs. Republican issues. There is enough politics in the legislative and executive branches, we should keep politics out of our courts. Cases should be decided on the fact and the law, not by partisan politics funded by special interest groups.

Follow @BrettEmison on Twitter.

Brett Emison

Brett Emison is currently a partner at Langdon & Emison, a firm dedicated to helping injured victims across the country from their primary office near Kansas City. Mainly focusing on catastrophic injury and death cases as well as complex mass tort and dangerous drug cases, Mr. Emison often deals with automotive defects, automobile crashes, railroad crossing accidents (train accidents), trucking accidents, dangerous and defective drugs, defective medical devices.