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January 30, 2010

"Reformers Hope High Court Decision Will Kill Judicial Elections"

The title of this post is the headline of this interesting new article by Tony Mauro in The National Law Journal.  The sub-head of this piece is "The 'Citizens United' opinion, they reason, may drive more money into judicial races and turn off the public," and here is how it gets started:

For years now, judicial reform groups have more or less resigned themselves to the reality that the public likes to elect its state judges and will fight any effort to appoint them instead.

The U.S. Supreme Court's Jan. 21 decision in Citizens United v. FEC may have altered that sober truth -- or at least has given reformers a glimmer of hope that it might.  By supersizing possible corporate domination of judicial elections, the thinking goes, the Supreme Court's decision may finally make the public see how unseemly the elections are -- and move toward merit-based selection as an alternative.

"There is a silver lining to the decision," said Ohio Chief Justice Thomas Moyer, who has taken the lead in seeking change in Ohio's elective system for judges.  "For those of us who have been trying to impress upon the public the deleterious effects of money in these elections, it helps us make the point that we need to get the money out."

"The time is now for change," said Rebecca Kourlis, former Colorado Supreme Court justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver.  "I believe we can revitalize the merit-selection movement."

Kourlis spoke at a Georgetown University Law Center conference on judicial elections convened on Jan. 26 by retired Justice Sandra Day O'Connor.  In retirement, working with Kourlis and others, O'Connor has become a merit-selection evangelist who energizes the movement by her sheer presence.  O'Connor's calendar is dotted with meetings with local good-government groups across the country aimed at jump-starting the effort to change the way state judges are chosen.  Currently, O'Connor said, more than 80 percent of state judges have to win a political election to gain or retain their seats.

At the conference, O'Connor said that Citizens United, in tandem with last year's Caperton v. A.T. Massey Coal Co., has focused public attention on the "mutually assured destruction" of the "funding arms race" that has made multimillion-dollar judicial campaigns commonplace. In the Caperton ruling, the high court said that, in some instances, a corporate campaign expenditure in a judicial campaign can be so large that due process requires a judge to recuse in pending cases involving the company.

"These two cases should be a warning to states that still choose judges by popular elections," said O'Connor.  "These states should at least pause and think whether some change is needed.  The time is now for opponents of merit selection to do a little soul-searching."   O'Connor, who retired from the high court in 2006, declined to comment specifically on Citizens United, but made it clear she was unhappy.  "Gosh, I step away for a couple of years, and there's no telling what's going to happen."

I suspect that folks who litigate criminal cases and work on sentencing issues in the states know the import and impact of the fact that "more than 80 percent of state judges have to win a political election to gain or retain their seats." Consequently, there could be some significant sentencing echoes if Citizens United really does prompt some changes in some state judicial selection procedures.

January 30, 2010 at 11:22 AM | Permalink


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At this point they are just hoping to drag the process out long enough that Obama is out of office. Bush succeeded at that goal, why not the new guy? They have to look like they are moving toward holding trials just never quite get there. Something will always happen to delay it a little longer. And since any habeas proceeding, even if held, would conclude that these guys are being held lawfully it won't really matter to anyone that a trial is still years away.

Posted by: Soronel Haetir | Jan 30, 2010 1:09:42 PM

The tacit premise of the article is that voters will think something like this: "I'm so stupid that I won't be able to see through the coming blizzard of bought-and-paid-for ads, won't question what they're saying or leaving out, and won't pay any attention to who's sponsoring them (which will remain a required disclosure). Therefore I'll be happy to relinquish my present right to have a direct say in who gets to be the judge that could decide MY case, and will hand over that right to a bunch of people I never heard of."

The problem with this line of thinking is that no actual person will adopt it, nor should they.

The idea that Citizens United will have any effect on keeping or not keeping state judicial elections is nuts.

Posted by: Bill Otis | Jan 30, 2010 1:21:35 PM

Sigh, my comment was intended for the KSM trial post.

Posted by: Soronel Haetir | Jan 30, 2010 1:32:35 PM

Republicans really do think the people are dumb, but if they are not, why does propaganda work? Or if it doesn't work, why distribute a propaganda pamphlet?

How Newt Gingrich used these techniques

For that matter, why does negative advertising work?

The Sleeper Effect and Negative Political Advertising

"Simply put, while we may discount something initially because of who said it, or where we encountered it, over time we will forget the source, or dissociate it from the message, but remember the message."

So it is not because voters are dumb. It is because the brain is wired to recall the negative. There is a plausible argument that the Party of Principles, the Party of No, is really the party of the negative, which is its number one principle: to manipulate.

As the above article concludes:

In summary, we offer several simple statements:

If an attack stands alone, unanswered, it is effective.

If an attack is refuted, the attack will, ultimately, still be effective.

If an attacker damages his or her own credibility, the attack message itself will still have positive impact over time.

If attacked, therefore, the best defense for the victim seems to be a strong, swift offense.

Posted by: George | Jan 30, 2010 3:41:15 PM

The hierarchy of the lawyer criminal cult enterprise is striking. It wants to take over one of the few remaining areas of public participation in the law. Only elites, and good ol' boys need apply after they succeed.

Posted by: Supremacy Claus | Jan 30, 2010 4:41:16 PM

i have to agree george. just like the simple statement done in a court room

"the jury is instructed NOT to use anyting the witness has just said in your deliberations."

that has to be the dumbest order given since mccarthar was ordered to blow up HALF a bridge!

Posted by: rodsmith3510 | Jan 30, 2010 5:56:32 PM

I have an acquaintance who is an elected judge in a county with 2,200 residents and an area of 2,200 square miles. When he retired he was elected JP and when the previous judge retired he was elected judge and learned how to judge by on-the-job-training and weekend judges schools held several times per year. I met the county attorney but did not think to ask him how many attorneys lived in the county or if he was a county resident.

I wonder how selection by merit would work under those circumstances. My guess is that county residents would rather select their own unqualified judge rather than have the governor select an unqualified person that is owed a political favor.

Posted by: John Neff | Jan 30, 2010 8:49:07 PM

Electing judges, the only potential roadblocks to tyrannical majorities, is a simply bad idea in a country with proud slogans like the ones Americans like to toss around.

But of course that doesn't mean this Supreme Court will feel compelled to thwart the practice.

Posted by: John K | Jan 31, 2010 11:53:41 AM

John K --

"But of course that doesn't mean this Supreme Court will feel compelled to thwart the practice."

What might make them feel "compelled" to thwart the practice is language in the Constitution stating or directly implying that the electorate of a state should not be able directly to choose its own judges.

Could you quote the Constitution's language specifically to that effect?

Posted by: Bill Otis | Jan 31, 2010 12:34:46 PM

Good point.

Posted by: John K | Jan 31, 2010 3:54:52 PM

John K --

Fair enough. Thank you.

Posted by: Bill Otis | Jan 31, 2010 11:32:59 PM

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