"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.