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Last year, the New York Times asked the question: Can Justice be bought? A Washington Post article from March suggests powerful Super PACs may be preparing to try.

While many states have enacted some form of merit-selection for judges (often referred to as The Missouri Plan in reference to Missouri's landmark creation of merit selection in the 1940s). But in states that elect judges by popular election – and particularly in states that elect powerful appellate courts including state Supreme Courts – the issues of political influence and contributions are unshakable.

While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges… to prepare for battles they never expected to fight.

Source: Washington Post

While judicial elections make such preparations necessary, they certainly aren't welcome by the judges identified in the article:

"It is almost embarrassing to be doing it." – Justice Fred Lewis.

"It's an awkward thing." — Justice Barbara Pariente.

"We should not have to go around and have our friends and committee collecting money. We don't want to get caught up in those kinds of things." – Justice Peggy Quince.

Former United States Supreme Court Justice Sandra Day O'Connor summed it well in speaking to University of Missouri Law Students:

"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 Kaus 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).

Elected judges remain mindful of the backlash unleashed against Iowa Supreme Court judges following a same-sex ruling. Three Iowa Supreme Court judges lost judicial election after a million-dollar campaign to defeat them. In the preceding 10 years, not a single dollar had been spent on elections for Iowa's highest court.

The Washington Post article suggests outside special interests are becoming much larger factors in judicial elections. A 2010 study looked at 29 judicial elections and found that the top five spenders averaged nearly half-a-million dollars each… while all other donors averaged $850. Election-law loopholes allowed much of that money to be delivered in secret.

The Post lists numerous examples (some of which you may have read about here):

  • Nearly $4 million in outside negative ads for the Wisconsin Supreme Court election
  • Nearly $9 million in outside money for two Michigan Supreme Court elections
  • $3 million by Massey Energy boss Don Blankenship in a West Virginia Supreme Court election

Merit-selection systems – like the Missouri Plan – work to keep much of the political pressure and influence out of the courtroom. But even in Missouri and other merit selection states, judges are subject to retention elections. In Florida – discussed in the Post article – the concern was that outside groups would swoop in with millions of anonymous dollars at the last minute to dictate the outcome of these retention elections.

When justice can be influenced (or worse, bought), Liberty is extinguished. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democrat vs. Republican issues. Cases should be decided on the facts and on the law, not by politics funded by special interest groups.

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(c) Copyright 2012 Brett A. Emison

Follow @BrettEmison on Twitter.

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