Electing Judges?

| Birmingham — Voting for a judge is not that unusual in the United States. While federal judges are appointed, 39 states elect at least some of their judges. In Alabama, less than half are elected but those top seats on the state Supreme Court do go before voters. The public seems to like it that way. A Harris Poll out this month finds a majority of Americans back electing judges although not necessarily in a partisan way. When the parties do collide over judicial seats as they do in Alabama, it can get ugly.

[TV ads] “Greg Shaw’s cronies are being condemned for attacking Deborah Bell Paseur with lying phone calls…In record time Deborah Bell Paseur broke her pledge to run a positive campaign. Judge Greg Shaw. He’s keeping his word.”

Sounds more like a congressional or gubernatorial campaign. But the ads actually get to the main rub with electing judges.

“Deborah can’t be bought.”

Influence. How much does campaigning, particularly the money involved in campaigning, influence a judge’s behavior on the bench?

“I’m Harold See.”

How long have you been on the Alabama Supreme Court?

“I’m completing my twelfth year on the bench.”

It’s actually Justice See’s seat on the court that’s up for grabs this election.

“I’ve never found a case where a judge was convicted of having made a decision
in return for money being given to his campaign.”

But See says he does know of cases where judges have ruled based on money going to their own pocket – a bribe. See supports the election of judges, but adds he understand why people are bothered by campaign money in judicial races. It doesn’t look good.

“But it seems to me we ought not choose our judicial selection system based on
perception as opposed to reality.”

“Even if it’s just a perception. It’s so bad you have to treat it like a reality.”

Mark White is the President of the Alabama State Bar. He is not a fan of judicial elections. He says the allegations that get throw about in a campaign can unfairly tarnish a qualified judge. But beyond that, White says most people don’t have a clue when it comes to the names in a judicial race. Try this, he says. How many Alabama Supreme Court justices can you name? Now how many judges on American Idol can you name?

So money in judicial campaigns may not look good. But can money actually buy rulings from a judge? Here’s Northern Illinois University Political Scientist Matt Streb.

“It’s an incredibly difficult question to study and so far the answer has pretty
much been mixed.”

Streb says when it comes to campaign money it often comes from two sources – business groups and trail lawyers. In other words, people likely to appear before a judge. In terms of the opinions judges actually hand down, he says there is evidence those elected are less likely to overturn death penalty cases, particularly closer to re-election. Then there’s the issue of voters having sufficient knowledge of judicial candidates. Streb says there’s evidence the public, in aggregate, does make informed decisions.

“My hunch though, is essentially what they’re measuring is name recognition.”

Think of that candidate who plasters the neighborhood with election signs. But when it comes down to it, what is the difference between an elected judge and an appointed judge?

“Essentially very little.”

Now before we declare a deadlocked jury in the case consider a few other things. Proponents of electing judges argue the public should be able to test the candidates directly, just as we have a say with legislators or executives. But appointed judges say they’re not free from scrutiny. Take U. W. Clemon, a Federal District Judge in Birmingham. He was appointed by President Jimmy Carter in 1980 becoming Alabama’s first black federal judge. It was a contentious confirmation.

“I had been a civil right’s lawyer and had sued some of the larger
employers…Bear Bryant. I was not extremely popular in some segments of the
political and legal community.”

Clemon says he’s felt free of political influence these past 28 years, but adds the public did have a chance to express their views through their Senators during the confirmation process. The opposition can work as well to defeat a judicial appointment. You may remember a couple of years ago when President Bush filled vacancies on the U.S. Supreme Court. Outside groups ran ads for or against Justices Roberts and Alito. Northern Illinois University’s Matt Streb points out that even in non-partisan judicial elections, political parties are active in recruiting, endorsing and fundraising for candidates.

What this really comes down to, he says, is a balance between these two ideas. How much judges are accountable to the people and how much are judges accountable to the law. Direct partisan elections, non-partisan elections, retention elections, appointments…they’re all points along this continuum.

“Each system as we’ve said has its strengths and weaknesses.”

And for Alabama and its Supreme Court, that system happens to include a direct choice at the ballot box and a “D” or “R” beside the candidate’s name.

— Andrew Yeager, October 30, 2008