Election Day is right around the corner - and whether you're a political junkie, a rage-against-the-machine-activist, or among the mooching 47% that bailed-out bankers roll their eyes at behind closed doors, you're paying attention. But when debating tax plans, embassy security, or who made the most offensive rape-related comment, how many consider judicial philosophy?
Well, if you live in one of the dozens of states electing judges this year, you might be expected to. The role of courts in our society has always seemed to be one amicus away from a fever pitch - and this year was no exception. After all, this was the Year of the Obamacare Decision.
Moments after the Supreme health care dust settled last June, pundits were in a frenzy to report the inside scoop. Chief Justice Roberts, after inviting everyone to dance, left town for Malta. The insatiable clamor, and the absence of the Chief, led some commentators to cast the most damning of aspersions.
The Decision, as written by the Maltese Falcon himself...was political.
Many who made this claim, coincidentally, didn't like the decision, even though it was based in legal reasoning and supported by a majority of the Court. Being political is bad, they said, yet state courts regularly hold political contests to choose their judges. So what do we want? An absence of politics in the courtroom, or a courtroom filled through political processes?
Judicial elections range in type - from partisan squabbles to up-or-down retention votes. And if calling a decision "political" is indeed a bad thing, then we either (a) believe that judges have no political agenda to advance, or (b) have faith that their agenda is both selfless and impartial, magically detached from their campaign efforts. Some voters like electing judges - make them accountable! - and want the best judges who "represent their community". But this assumes that people choose on merit, looking beyond the well-funded attack ads.
Polls show that up to 97% of elected state Supreme Court judges feel pressure to raise money; over $200 million was raised between 1999 and 2008, more than double than in the preceding decade. If you like the way other races are funded, then you'll love this glorious trend. Sandra Day O'Connor, who was both elected and appointed in her career, has vocally opposed these races, calling special interest campaign spending "the greatest threat to judicial independence". Alexander Hamilton warned of this centuries ago.
Recent races demonstrate that politics, not judicial temperament, can be decisive. Colorado's former Chief Justice Mary Mullarkey presiding over a review of (and upheld) legislation allowing for certain taxes, drawing the ire of an anti-tax group which collected unlimited contributions to seek her ouster (she ended up resigning instead). Kansas Supreme Court Justice Carol Beier survived a full assault by an anti-abortion group, which criticized her "unprofessionalism" - meaning "not overtly anti-abortion". And Illinois's Supreme Court Chief Justice Tom Kilbride voted to reject medical malpractice caps, and then had to raise $2.6 million to defend his record in 2010. But what happens when it becomes too costly to defend your record against the business or the pro-life community?
During the 2012 primary season, in 7 states alone, $4.6 million was spent on television ads for judicial races. With a lack of broad public interest, donors are a concentrated few - after all, who donates $100 just to see an impartial jurist on the bench? While many candidate forums, from Washington to Ohio, focus on court systems and processing cases, other races have a palpable ideological focus - as Iowa's anti-gay marriage campaign in 2010 showed.
And if there's any doubt as to which direction we are headed, look at the so-called Announce Clause. Minnesota tried to forbid judicial candidates from announcing their views on legal and political matters that could come before judges, once elected. The Supreme Court overturned that law after a challenge by the Republican Party, pressuring judicial candidates to announce how they would decide before they even don the robe. Public matching funds were banned in North Carolina (thanks Citizens United!), and in Michigan, special interest campaign funding does not have to be disclosed. So, your opponent in court could be the judge's chief financier. And you won't know it.
Electing judges is rare in the rest of the world - which favors appointments or civil service selection. A tiny few local judges run the gauntlet, but it's fair to say that their elections don't involve accusations of releasing rapists. Elections as referendums on single decisions, like in Iowa, are so alien to the rest of the world, they might as well be held on Mars. Other countries look at decisions favorable to campaign contributors, like Massey Energy in West Virginia, and shudder. One recent study showed that conservative and pro-business groups dominate the pool of campaign donors in these races - and there are returns on their investments.
These races are under-the-radar for most of us, but not for industries likely to go before the judges in the future. So, what do we want? Well, we want political contests that lead to an absence of politics in the courtroom. Are we are kidding ourselves?