Testimony of Adam Skaggs, Counsel, Democracy Program
Brennan Center for Justice at NYU School of Law
Before The Senate Judicial Proceedings Committee of the Senate of Maryland
Regarding Judicial Elections and Senate Bill 833, March 9, 2010
On behalf of the Brennan Center for Justice at NYU School of Law, I want to thank the Judicial Proceedings Committee for holding this hearing, and for extending the invitation to speak with you today.
My name is Adam Skaggs, and I am counsel at the Brennan Center. The Brennan Center is a non-partisan public policy and legal advocacy organization that focuses on fundamental issues of democracy and justice. Our Fair Courts Project works to preserve fair and impartial courts and their role as the ultimate guarantor of equal justice in our constitutional democracy. Our research, public education, and advocacy focus on improving judicial selection systems, increasing diversity on the bench, promoting measures of accountability that are appropriate for judges, and keeping courts in balance with other governmental branches.
The subject of today’s hearing, Senate Bill 833, would conform the selection of Maryland’s circuit court judges with the selection system used to choose other judges in Maryland. In particular, Senate Bill 833 would replace contested elections with a system of appointment and retention elections. Like Maryland, several other states are considering proposals to replace contested elections with such systems.[1]
Additional states are reforming judicial elections by adopting public financing, or by strengthening disclosure and judicial disqualification rules.[2] All these reforms have been proposed and adopted because of growing public concerns about the increased role that money and partisanship play within contested judicial elections, the ever more negative tone of these races, and the questions about courts’ impartiality that have resulted.
The Brennan Center follows efforts that aim to reform judicial selection systems (including elections), and we advocate measures that support an independent, impartial judiciary. As I will discuss today, our research has identified various threats. First, we have seen increasing challenges to the courts in states with contested judicial elections, as heightened spending in elections undermines public confidence in the judiciary. In addition, we have documented the importance of diversity on the bench and studied ways to increase diversity. After discussing these issues, I will conclude by noting the numerous proposals states are considering to address these challenges, including the proposal at issue today, which would replace contested elections with a system of appointment and retention elections.
I. Dramatic increases in judicial election spending threaten independent and impartial courts.
The rising tide of money in judicial elections poses serious threats to elected courts. Nationwide, candidates in contested judicial elections must meet escalating fundraising targets to remain competitive. In a 2001 poll of state and local judges, for example, more than 90% of all elected judges nationwide said they are under pressure to raise money in election years.[3]
Serious questions about judicial impartiality arise when judges collect campaign funds from the lawyers and parties who appear before them. Indeed, just last year, the Supreme Court disqualified a West Virginia judge from hearing the case of his largest campaign supporter after concluding that, by refusing to step aside from his benefactor’s case, the judge violated the opposing party’s constitutional right to a fair trial before an impartial court.[4] But earlier this year, in Citizens United v. FEC,[5]
the Supreme Court opened the door to increased corporate and special interest spending in judicial elections — and to more conflicts of interest involving judges and their campaign supporters — by striking down the long-standing federal ban on corporate independent expenditures in elections.
Over the last decade, spending in judicial races has skyrocketed.
Between 2000 and 2009, candidate fundraising more than doubled from the previous decade across more than 20 states with competitive elections for state supreme courts — rising to $206.4 million from the $83.3 million raised between 1990 and 1999.[6] Nineteen states set high court fundraising records in the 2000–2009 decade. Candidate fundraising, collectively, topped $45 million in three of the last five election cycles.[7]
Just as candidate fundraising has soared, so has the use of television advertising in judicial races, and an increasing percentage of this advertising comprises negative ads and character attacks. From 2000 to 2009, an estimated $93.6 million was spent on television advertising by candidates and interest groups hoping to sway judicial contests.[8] The period from 2007 to 2008 was the most expensive cycle for television advertising in supreme court election history, with nearly $27 million spent. Another $5 million was spent in 2009, when only 3 states hosted supreme court races. Eight states set records for spending on television ads from 2007 to 2008, and 2008 saw more television ads aired in supreme court contests than ever before.[9]
The swelling costs of campaigns for the bench have coincided with the expanded involvement of outside special interest groups. The so-called “tort wars” have spilled onto the campaign trail, with business groups squaring off against plaintiffs’ lawyer groups and unions in arms-race spending battles. Special interests and party organizations paid for more than 40% of all the television advertising for state supreme court candidates from 2000 to 2009.[10] In some races, interest group spending dwarfed that of the candidates themselves: in a 2006 high court race in Washington, for example — the most expensive judicial election that state had ever seen — every single television ad was paid for by outside special interest groups independent of the candidates themselves.[11]
The arms-race spending in judicial campaigns is undermining public confidence in fair and impartial courts.
The public is concerned about the growing price-tag associated with running for the bench. In a 2004 survey conducted by Zogby International, more than 70 percent of the respondents said they believed that campaign contributions had at least some influence on judges’ decisions. More than 80 percent of African Americans expressed this view, including a majority who said contributions had a “great deal” of influence.[12] Similarly, in a national poll conducted in 2001, 76 percent of those surveyed reported believing that judges’ decisions were influenced by contributions.[13]
Given these figures, it is not surprising that a February 2009 national poll conducted by Harris Interactive revealed that more than 80% of the public believes judges should avoid cases involving major campaign supporters.[14] And a USA Today/Gallup Poll also conducted in February 2009 found that 89% of those surveyed believe the influence of campaign contributions on judges’ rulings is a problem. More than 90% of the respondents said judges should not hear a case if it involves an individual or group that contributed to the judge’s election campaign.[15]
Judges themselves share the concerns about money’s influence on judicial decision making. In a 2002 survey of more than 2,000 state judges, nearly half of those surveyed — 46 percent — reported believing that judges’ decisions were influenced by campaign contributions.[16] More than 70 percent of judges expressed concern about the fact that, “[i]n some states, nearly half of all supreme court cases involve someone who has given money to one or more of the judges hearing the case.”[17] And more than 55 percent of state court judges believe that “judges should be prohibited from presiding over and ruling in cases when one of the sides has given money to their campaign.”[18]
II. The legitimacy of the judiciary is enhanced when it is as diverse as the community it serves.
Extraordinary spending in judicial campaigns is not the only trend that threatens to undermine public confidence in the courts. Members of our increasingly diverse society may question the legitimacy of the judiciary when its diversity lags behind that of society as a whole. Yet, at the same time more women and persons of color have enrolled in law schools and joined the legal profession, they continue to be underrepresented on the bench.[19]
A diverse bench is important because it improves both the quality of the judiciary and the perception of the courts. Supreme Court Justice Lewis Powell explained that “a member of a previously excluded group can bring insights to the Court that the rest of its members lack.”[20] And a bench that reflects the community it serves is more likely to be seen as legitimate in that community’s eyes. As Professor Jeffrey Jackson has explained:
Judges are not the exclusive province of any one section of society. Rather they must provide justice for all. In order for a judicial selection to be considered fair and impartial, it must be seen as representative of the community.[21]
Despite the importance of a representative bench, the diversity of Maryland’s circuit court judges lags that of the state’s overall population. More than 40% of Maryland’s residents are non-white, and yet, according to a 2008 Brennan Center report, non-whites make up less than 17% of Maryland’s trial court judges.[22] (In contrast, on Maryland’s appointed high court, non-whites constitute nearly 30% of the bench; together, non-white and female judges comprise 70% of the court.[23]) Moreover, in the 1996 and 2004 elections, three of four sitting Circuit Court judges who lost their re-election campaigns were African Americans; and today, there are no non-white Circuit Court judges in Western Maryland or on the Eastern Shore.[24] These developments are of particular cause for concern given the increasing diversification of the legal profession: while non-white students represented only 18% of those attending the University of Maryland Law School in 1986, they represented 29% in 1996, and fully 32% in 2006.[25]
III. A range of reforms can address the threats to a qualified, diverse, independent judiciary.
Despite the challenges facing the judiciary, there are various measures different states have taken which can effectively respond to these challenges. Some states may ultimately choose to eliminate contested elections entirely, as SB 833 aims to accomplish in Maryland. Other states will prefer to reform existing election systems by adopting public financing and strengthening disclosure and disqualification rules.
The particular solutions that are appropriate in one state may not make the most sense in another, and the Brennan Center does not suggest that every state with contested judicial elections adopt a single, blanket solution. I would like to emphasize this point, because it may be necessary to clarify the Brennan Center’s often mischaracterized position. Because we have documented the escalating spending in judicial elections and called for effective rules for recusal when there are reasonable questions about a judge’s impartiality, the Brennan Center has been accused of opposing all judicial elections.[26] This is not the case. Unlike some advocacy groups, the Brennan Center has never advocated that every contested judicial election should be replaced with a system of appointment and retention elections. Though such a reform may make sense in a state, like Maryland, that already uses a merit appointment system for most of its courts, in another state with different circumstances, other reforms may be more appropriate.
Three particular responses will allow states to address the challenges that stem from contested judicial elections.
Adopting Public Financing for Judicial Campaigns
As the President of the American Bar Association recently noted, “[a] judicial system that requires judges to solicit contributions from interests appearing before the court risks removing the blindfold from the eyes of Lady Justice.”[27] To get judges out of the unseemly business of dialing for dollars, some states have chosen to adopt systems of public financing.
North Carolina became the first state to enact a voluntary public financing program for judicial campaigns in 2002. Public financing has now been in place there for three election cycles (2004, 2006, and 2008), and has been highly successful. Thirty-one of the 41 candidates competing for seats on the state Supreme Court or Court of Appeals since the adoption of public financing have participated in the program (and three other candidates applied to participate, but did not qualify). Moreover, participation has been high across demographic lines: challengers and incumbents, men and women, whites and African Americans, and Democrats and Republicans have all participated in high numbers. And, even in these economically challenging times, the program has remained solvent.[28]
Other states have followed — or are considering following — North Carolina’s lead. New Mexico adopted public financing for appellate judges in 2007,[29] and Wisconsin followed suit in 2009.[30] A legislative task force is studying judicial public financing in Illinois,[31] and a bill is currently pending in the West Virginia legislature.[33] The Brennan Center believes that states which choose to retain contested judicial elections should adopt public financing. Such programs remove the potential for conflicts of interest in the courtroom when judges raise money from the parties and lawyers who appear before them. Judicial public financing is, accordingly, embraced by the public. North Carolina’s system has strong public support, according to a 2005 poll, which showed that 74 percent supported the program.[33] A majority of West Virginia voters support the proposed public financing system in that state.[34] And public financing is popular with judicial candidates: as North Carolina Court of Appeals Judge Wanda Bryant said, public financing “makes all the difference. I’ve run in two elections, one with campaign finance reform and one without. I’ll take ‘with’ any time, any day, any where.”[35]
Codifying Robust Disclosure and Recusal Rules
When it disqualified a West Virginia judge from hearing the case of his $3 million benefactor, the U.S. Supreme reaffirmed that an impartial, unbiased tribunal is the sina qua non of due process of law. With unprecedented levels of money flowing into judicial elections, it is all the more important for states to adopt strict disqualification rules to ensure that judges do not hear cases when their impartiality might reasonably be questioned. Answering this challenge, various states have examined their recusal guidelines over the last year, with Michigan and Wisconsin among the first to adopt broad changes to their disqualification rules.[36]
The Brennan Center has long advocated reforming state recusal practice, and we have published several procedural and substantive reforms intended to deal with money in judicial elections and other potential conflicts of interest.[37] Among the key proposals are ones designed to enhance disclosure — both by litigants and by judges. Without robust disclosure of the spending involved in judicial campaigns, meaningful recusal practice is impossible. Thus, we maintain that judges, at the outset of litigation, should be required to disclose any facts, particularly those involving campaign statements and contributions, which might plausibly be construed as bearing on their impartiality. In addition, to assist judges in determining whether grounds for disqualification exist, states should require all litigants to file a disclosure at the outset of litigation, listing any campaign spending or other electioneering that might bear on the presiding judge’s ability to impartially hear the party’s case. Just as public financing addresses the role of money on the front end of the election process, strict disclosure and disqualification rules address conflicts in the courtroom on the back end of the process, and can help to ensure that judges do not preside over the cases of their biggest campaign supporters.
Replacing Contested Elections with Appointment and Retention Elections.
Given the challenges to judicial impartiality associated with contested elections, numerous judges, lawyers and policy makers advocate the solution proposed in Senate Bill 833: doing away with contested elections all together. These proposals generally call for replacing retention elections them with so-called merit systems, in which judges are screened by nominating commissions, appointed by the governor, and then subject to periodic retention elections. Leading this charge is retired Justice Sandra Day O’Connor, who has stated that, “What the people need and want at the end of the day is a fair and impartial judiciary, one that’s qualified, fair and impartial. . . . It is much more difficult to achieve that by using popular campaign-funded elections.”[38]
As explained above, the Brennan Center does not believe that eliminating contested elections entirely is the only appropriate response to the issues that these elections give rise to. States that choose to retain contested elections can meaningfully address many of the conflicts that arise during — and after — their elections by adopting public financing and strengthening disclosure and recusal rules. But for states like Maryland, which already use appointment systems for many of their judges, adopting systems of appointment and retention elections for all judges may be an important step forward that will allow the State to avoid many of the abuses associated with contested elections.
It must be noted, however, that replacing contested elections with merit systems is not a panacea. Merit systems can be structured in various ways, and they do not guarantee a diverse, qualified, independent judiciary. Thus, the Brennan Center has released a set of ten best practices that should be followed in any appointment system to ensure that the brightest female and non-white candidates are considered for judicial appointments, and we urge any state using — or considering using — a merit appointment system to adopt these practices.[39] Rules must also be adopted to ensure that any nominating committee involved in an appointment system adheres to various core principles, including: transparency, so that key meetings and documents are open to the public; a balanced composition in which lawyer members do not dominate non-lawyer members, to ensure broad input and further the public trust; and the use of objective judicial performance evaluations that are available to the public.[40] If these guidelines are successfully implemented, a system like that proposed by Senate Bill 833 can further the goal of producing a model court system.
The conduct of judicial elections over the last decade has led to an unacceptable level of public skepticism that state judges apply the law evenly, fairly, and without bias. The time to respond is now.
On behalf of the Brennan Center, I commend the Senate Judicial Proceedings Committee for its attention to the crucial issues that challenge Maryland’s courts. Thank you for the opportunity to speak with you today.
[1] See generally John Schwartz, Effort Begun to End Voting for Judges, N.Y. Times, Dec. 23, 2009.
[2] See, e.g., Viveca Novak, Public Financing Comes to Wisconsin Supreme Court, FactCheck.org, Dec. 2, 2009; Ed Brayton, Mich. Supreme Court Adopts New Recusal Rules, Michigan Messenger, Dec. 1, 2009.
[3] See Greenberg Quinlan Rosner Research, Justice at Stake – State Judges Poll, 2001, at http://www.justiceatstake.org/media/cms/JASJudgesSurveyResults_EA8838C0504A5.pdf (“2001 Greenberg Quinlan Poll”).
[4] See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).
[5] 130 S.Ct. 876 (2010).
[6] See Charles Hall et al., New Politics of Judicial Elections, 2000–09: Decade of Change (2010) (forthcoming) (“New Politics 2000–09”); see also Ian Urbina, 24 States’ Laws Open to Attack After Campaign Finance Ruling, N.Y. Times, Jan. 22, 2010.
[7] See New Politics 2000–09.
[8] Id.
[9] Id.
[10] Id.
[11] See James Sample et al., The New Politics of Judicial Elections 2006 13 (2007), at http://www.brennancenter.org/content/resource/the_new_politics_of_judicial_elections_2006/ (“New Politics 2006”).
[12] See Justice at Stake, March 2004 Survey Highlights Americans Speak Out On Judicial Elections, 2004, at http://www.gavelgrab.org/wp-content/resources/polls/ZogbyPollFactSheet.pdf.
[13]2001 Greenberg Quinlan Poll.
[14]Justice at Stake Campaign, Press Release, Poll: Huge Majority Wants Firewall Between Judges, Election Backers (Feb. 22, 2009), at http://www.justiceatstake.org/node/125.
[15] See Joan Biskupic, Supreme Court Case With The Feel Of A Best Seller, USA Today, Feb. 16, 2009.
[16] See Greenberg Quinlan Rosner Research & American Viewpoint, Justice At Stake State Judges Frequency Questionnaire 5 (2002), at http://www.gqrr.com/articles/1617/1411_JAS_judges.pdf.
[17] Id. at 9.
[18] Id. at 11.
[19] See generally Ciara Torres-Spelliscy et al., Improving Judicial Diversity (2008), at http://www.brennancenter.org/content/resource/diversity_report/ (“Improving Judicial Diversity”).
[20] Kevin Johnson & Luis Fuentes-Rohwer, A Principled Approach to the Quest for Racial Diversity on the Judiciary, 10 Michigan L. J. of Race & L. 2, 23 (2004).
[21] Jeffrey D. Jackson, Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based Selection System, 34 Fordham Urb. L.J. 125, 145 (2007).
[22] See Improving Judicial Diversity at 49 Appx. D.
[23] See id.
[24] See Annie Linskey, Ex-Justice O’Connor Favors End to Electing Judges, Baltimore Sun, Mar. 04, 2010.
[25] See Improving Judicial Diversity at 15 & chart B.
[26] See, e.g., Jonathan Blitzer, Vanishing Recusal Prospects in Wisconsin, Brennan Center, Jan. 26, 2010, at http://www.brennancenter.org/blog/archives/vanishing_recusal_prospects_in_wisconsin/.
[27] Carolyn B. Lamm, Let’s Leave Politics Out of It, ABA Journal, Mar. 1, 2010, at http://www.abajournal.com/magazine/article/lets_leave_politics_out_of_it/.
[28] See generally Center for Governmental Studies, Public Campaign Financing: North Carolina Judiciary; Balancing the Scales, 2009, at http://www.cgs.org/images/publications/cgs_nc_judg_061709.pdf.
[29] See NM ST § 1–19A-1 et seq.
[30] See Governor Jim Doyle, Press Release: Governor Doyle Signs Impartial Justice Bill to Provide Full Public Financing of Supreme Court Campaigns, Dec. 1, 2009, at http://www.wisgov.state.wi.us/journal_media_detail.asp?locid=19&prid=4763.
[31] See Amendment to House Bill 7, Illinois House, available at http://www.ilga.gov/legislation/96/HB/PDF/09600HB0007sam002.pdf.
[32] See Jean Tarbett Hardiman, WV House of Delegates OKs Public Funding of Court Races, The Herald Dispatch, Mar. 3, 2010.
[33] See Justice at Stake, Press Release: Justice at Stake Hails Public Financing Breakthrough in Wisconsin, Nov. 5, 2009, at http://tinyurl.com/ycmq5vs.
[34] See Justice at Stake, Poll: West Virginia Voters Support Public Financing for Court Elections, Mar. 8, 2010, at http://tinyurl.com/y8fx5y5.
[35] Id.
[36] See generally Letter from J. Adam Skaggs to Hon. Henry Johnson, Jr., Chair, Subcommittee on Courts and Competition Policy, Committee on the Judiciary, U.S. House of Representatives, Dec. 15, 2009, at http://tinyurl.com/yhcv7ru (describing state recusal reform efforts after Caperton and analyzing Michigan and Wisconsin policies).
[37] See Brennan Center, Recusal Standards after Caperton v. Massey (2009), at http://www.brennancenter.org/content/resource/recusal_standards_after_caperton_v_massey/; see also James Sample et al., Fair Courts: Setting Recusal Standards (2008), at http://www.brennancenter.org/content/resource/fair_courts_setting_recusal_standards/.
[38] See Debra Cassens Weiss, O’Connor: Want a Qualified, Impartial Judiciary? Don’t Use Contested Elections, ABA Journal, Dec. 10, 2009, at http://www.abajournal.com/news/article/oconnor_want_a_qualified_impartial_judiciary_dont_use_contested_elections/.
[39] See Improving Judicial Diversity at 2–3.
[40] See Model Judicial Selection Provisions, American Judicature Society, 2008, at http://www.ajs.org/selection/docs/MJSP_web.pdf.