Wednesday, June 12, 2013

Washington Post: When Businesses Give to Judges, They Get What They Want

The Washington Post recently ran an interesting story on partisan election of judges.  This is obviously not a new story, but a recent academic study seems to confirm the hypothesis that many have surmised. The study, done by Emory law professor and economist Joanna Shepherd study looks at how state judicial systems go about securing judges for their highest courts. There are four ways states select these judges:  merit selection by the state legislature, other appointment systems, state-wide non-partisan elections, and partisan elections.

Of those judicial selection methods, Shepherd then looked to see which justices’ decisions were most influenced by big campaign contributions. It’s no surprise:  justices that were elected to the bench through a partisan election were much more likely to make judicial decisions based on the amount of campaign contributions they had received. The reasoning is simple. “When judges are elected, that means they have to raise campaign money — a lot of money, in fact. And the amounts in question have risen considerably in recent decades.” Judges, whether consciously or not, are more likely to rule in favor of businesses that have donated to their campaign in order to ensure that the campaign donations won’t dry up in the future.

The statistics from Shepherd’s study tell the same story:  “…a justice getting 1 percent of his contributions from business would vote for business 46.5 percent of the time. However, a justice getting 25 percent of contributions from business would vote in its favor 62.1 percent of the time.” As further evidence, Shepherd notes that, “In the last term before mandatory retirement, the favoritism toward business litigants by judges facing partisan and non-partisan elections essentially disappears,” which shows that judges are less likely to vote pro-business when they no longer need to raise money.

I think there are many who think of judges as politicians in robes. In many states, that’s what they are … They seem to think judges should be a reflex of the popular will.

— Retired U.S. Supreme Court Justice Sandra Day O’Connor,making “a plea for preserving the impartiality and independence of the American judicial system,” the Chicago Tribune reports.

One must ask:  Are partisan elections a good idea?

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