Can American state judges be bought, legally? The answer to that question is not entirely clear. The fact that the answer is not a resounding "no" is a serious problem for the integrity of our state judicial system. The sad truth is that far too often justice is for sale in American courts, and the public barely expresses outrage.
In approximately 40 states, judges are elected. As they run for election or reelection, they can raise money to underwrite their campaign costs. In many of these races, the candidates or incumbents accept money from parties or attorneys who later appear before them in lawsuits.
How can that be? If a judge has accepted money from a litigant, doesn't that fact alone compromise the judge's appearance of objectivity, impartiality, and fairness? In most states, the answer is no; the judges are effectively permitted to police themselves.
When I went to law school some 35 years ago, the Canons of Professional Responsibility had a rule requiring attorneys to "avoid even the appearance of impropriety." Counsel took that admonition seriously, but what does it say about a judicial system that permits attorneys and their clients to give money -- and judges to accept that money -- to underwrite judicial elections? Would anyone recommend such a system to a fledgling democracy determined to promote the rule of law and principles like sanctity of contract?
Some might say that there is no evidence that campaign contributions undermine judicial integrity, or that attorneys and other contributors make these contributions as a quid pro quo. Well, in fact, there is evidence that such contributions are not made for charitable or good government reasons at all.
In the 1970s, several municipal jurisdictions (most notably in Florida) decided to address the matter of perceived conflict of interest by permitting attorney contributions in judicial elections but only on the condition that the contributions remain anonymous. The donor's name had to be decoupled from the contributions. This approach sounds like a sensible reform that would, perhaps, insulate judges from the taint of corruption.
What happened? As you might have guessed, the contributions dried up.
The business-led Committee for Economic Development began to address these issues in a comprehensive study more than 10 years ago. "Justice for Hire: Improving Judicial Selection" urged reforms that would move away from judicial elections and towards merit-selection approaches which, in states such as Delaware and Virginia, have produced courts that are routinely held in higher esteem than states where the judges are elected.
Some state courts actually became known publicly as favoring plaintiffs, and in these instances, the perception was fueled by large campaign contributions to individual judges by members of the trial bar. After several years of these contributions, the United States Chamber of Commerce began to return the fire, raising millions of dollars to support judges who were seen as more "business friendly." The result has been a steadily increasing judicial arms race. Contributions to judicial campaigns went from $83.3 million from 1990-99 to a stunning $206.9 million in 2000-2009.
And that arms race has the potential for escalating further. The U.S. Supreme Court's January 2010 Citizens United v. Federal Elections Commission ruling opened the possibility of unlimited corporate and labor union contributions to third-party organizations trying to influence judicial elections.
As the Committee for Economic Development was preparing "Justice for Hire," one of the members of its subcommittee on judicial selection reform, a prominent Texas plaintiff's attorney who also wanted to change the system, announced that "in Texas, we've got 'jukebox justice'. You put your quarter in the jukebox, and your judge sings your tune." At the final subcommittee meeting, on the eve of CED releasing its study, this attorney announced that he personally had made over $200,000 in judicial campaign contributions during that Texas campaign cycle.
Notwithstanding the burgeoning arms race in judicial-campaign contributions, there is some possibility of hope. In the 2009 Supreme Court ruling in Caperton v. Massey Coal Company, Justice Kennedy wrote that "there is a serious risk of natural bias...when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."
While the facts in this case were called "extreme" by the Supreme Court (a litigant successfully spent some $3 million to oust an incumbent West Virginia Supreme Court Justice in favor of his opponent who, after being elected, voted to award $50 million in damages to the company headed by his campaign supporter), the decision has opened the doors to further litigation on the basis of such risk of bias.
Only a few days ago, New York's Chief Justice Jonathan Lippman announced a new rule that would bar cases from being assigned to a judge to whom lawyers or any participants had donated $2,500 or more in the preceding two years. Judge Lippman sees this rule as promoting the court's fundamental integrity and assuring the public that judges remain "neutral arbiters of disputes."
If our state courts are seen as dispensing "jukebox justice," then all Americans lose: our judges will have become just one more commodity for sale, and our system of justice and its principles of fairness, objectivity, and independence will be lost. What happened in New York sends a message to the rest of the nation, and other state courts should follow Judge Lippman's splendid example.
Charles Kolb is president of the nonpartisan, business-led Committee for Economic Development in Washington, D.C. He served in the George H.W. Bush White House as Deputy Assistant to the President for Domestic Policy. The above views are solely the author's.