an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times recently reported on the scandalous degree to which Ohio Supreme Court judges have issued rulings that favor parties who gave them campaign contributions.
An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O'Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.
In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors' cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.
Although the article focuses on Ohio, this is a national pattern, with millions of dollars now flowing into state judicial elections around the country. A statistical study of the Alabama Supreme Court by Andrew Ware also found a "striking" correlation between campaign contributions and the judges' votes.
The biggest players in this are business interests, although the plaintiffs' bar are also major contributors. In recent years, many of the contributions come from outside the state. The U.S. Chamber of Commerce, for example, participated in 16 state Supreme Court and Attorney General contests in the 2004 election. The Chamber's Chief Legal Officer, Stanton Anderson, bragged after the election that the Chamber "won every race in which we were involved." The Chamber has invested--that is the correct word--$50 million in state judicial elections since 1998.
The high correlation between contributions to judges and favorable decisions does not necessarily suggest corruption of the judges. Rather, contributors supply money to judicial candidates whose personal ideologies match their interests. As the article put it: "...contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court." Not just trying, I should add, but succeeding.
The corruption of politicians by money from lobbyists is well known--and there "corruption" does fit--but this phenomenom has thus far escaped much attention. It is more insidious, because people are less aware of it, and because it compromises the integrity of law by sending the message--once again!--that the personal beliefs of the judge matter more than what the law says.
If you have enough money and are savvy about how you distribute it, today you can buy the legislation you desire, and you can seat the judges who will interpret that legislation and other laws.
The buying justice problem is troubling though my immediate concern in judicial elections is that few know anything about the people they are voting for (other than ideology, perhaps).
Such is the case in NYC in judicial elections ... local judges are elected, but it is unclear how the ordinary person knows anything about them except who some local pol endorsed or perhaps their political label (though there is a lot of cross-party candidates).
Of course, the federal situation is not free from problems. Thus, various people have discussed how business interests etc. have focused more on judicial appointments, often seen as political plums for the President's party/base.