Supreme Court: Judges Are Not for Sale

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The U.S. Supreme Court in Washington. Gary Cameron/Reuters

After years of striking down campaign finance laws, the U.S. Supreme Court on April 29 upheld a Florida rule that bars judicial candidates from personally asking for campaign contributions. Chief Justice John Roberts’s opinion drew a distinction between regulating legislative and judicial campaigns: “Judges are not politicians, even when they come to the bench by way of the ballot.”

The Roberts court has received strong criticism for decisions such as Citizens United that deny that campaign cash can lead to “the appearance of corruption,” but in Wednesday’s Williams-Yulee v. Florida Bar ruling, the chief justice acknowledged that campaign cash can cause the public to suspect bias or corruption. The court noted that voters could doubt a judge’s ability to rule “without fear or favor” if he or she “comes to office by asking for favors.”

The dissents by justices Anthony Kennedy and Antonin Scalia argued that the Florida rule was both too broad—covering requests to friends who are not lawyers—and too narrow—failing to prohibit judges from sending thank-you notes to donors. But the majority concluded that the rule was an appropriate means of preserving the public’s view of judges as fair and impartial.

These bans on judicial candidates directly soliciting campaign money, in place in 30 states, are an important step toward preserving the integrity of elected courts. The Center for American Progress (CAP) analyzed campaign contributions to justices in North Carolina—one state that does not have a ban on personal solicitation. The report, which examined the success rates of law firms that contributed to justices’ campaigns when they appeared before the North Carolina Supreme Court from 1998 to 2010, found that:

  • Among the “repeat-player” law firms—those with several cases before the court each year—the firms that gave more campaign cash had higher success rates than those that gave smaller donations.
  • In 1998…law firms donating $400 or more won 53 percent of their cases, compared to 48 percent for firms giving less than $400. The firms that had more than five cases before the court and donated $400 or more won an astonishing 70 percent of their appeals, compared to 33 percent for firms with at least five cases giving less than $400 in donations.

These correlations, regardless of whether they reflect causation, sow doubt in the public’s mind about the impartiality of judges. A ban on personal solicitation in North Carolina could mitigate these concerns.

To address the flood of campaign cash that seeks to influence judges, states must do much more than ban personal solicitation by judicial candidates. States can definitively solve the problem of money in politics by ending judicial elections altogether.

Federal judges have never been elected, and many states appoint judges. For judges who are elected, CAP has called for ethics rules that require judges to recuse themselves from cases involving their campaign donors, and it has noted that public financing for judicial candidates can help preserve judicial integrity and foster diversity on the bench.

Justice Ruth Bader Ginsburg, in a concurrence, argued for giving states even more leeway in regulating judicial elections. She noted that in recent years, special-interest groups have “spent millions of dollars opposing the re-election of judges whose decisions do not tow [sic] a party line or are alleged to be out of step with public opinion.” Justice Ginsburg cited the 2010 Iowa Supreme Court election, in which justices were targeted by out-of-state groups for their vote for marriage equality, and concluded that “disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence.”

Given the increasing politicization of judicial races, Chief Justice Roberts’s statement that “[j]udges are not politicians” may be more aspirational than accurate. But the court’s ruling acknowledged that money in judicial elections causes voters to doubt that judges can be impartial, and it gives states more tools to shore up confidence in elected judges.

Billy Corriher is the director of research for legal progress at the Center for American Progress. This article first appeared on the CAP site.