Judges, scholars want less politics in judicial elections

CHICAGO -- Judicial elections were much simpler when former California Judge Roger Warren retained his Sacramento County seat in 1982.

All he had to do was raise $75,000 -- a county record at the time -- to tout his credentials, said Warren, now president of the reform-minded National Center for State Courts. That was a tiny fraction of the combined $1 million spent last year by the two candidates seeking Warren's old post.

And with political action committees now running ads attacking judges on ideological grounds and daring them to state their positions, legal scholars fear the courts are losing their appearance of impartiality.

On Friday, Warren's group hosted 75 judges, lawyers and reform advocates in Chicago to discuss how to wrest judicial elections from a more complicated web of politics.

At issue are campaign finance reform and long-standing state or bar association codes of conduct that restrict judges and candidates from stating their views on such issues as abortion, gun control and victims' rights.

Politicians or mediators?

Eighty-seven percent of state judges are elected, and they conduct 98 percent of trials in the United States, Warren said. Last year, outside parties spent $45 million in the campaigns. And as judges feel increasingly compelled to respond to attacks on their records, they look more like politicians than mediators, reformers say.

"Judges should not be in the business of pre-committing to a decision and running like a legislator," said Texas Supreme Court Chief Justice Tom Phillips, one of 56 state justices facing re-election next year.

Yet PACs are running campaign ads on their own, linking judges to political positions, he said, adding that "John Q. Voter out there does not draw the distinction that those ads are not coming from the judge."

Last year one Illinois Supreme Court candidate lost his "recommended" rating from the Chicago Bar Association because of negative campaign ads. Another was criticized for promoting his anti-abortion views.

Phillips favors finance reform that forces PACs into greater disclosure of where they get their money. Then he wants civic leaders, lawyers and others to pick those sources apart, so voters know who's saying what. He said that could save judges from having to speak directly to the attacks or to espouse a political platform.

An issue of trust

As long as there is a perception that judges are for sale, he said, public trust will diminish.

If voters don't trust the courts, "then we're in a pretty bad way," Phillips said. "And if everyone expects judges to act a certain way, they're going to be more likely to act that way."

Texas is considering a recusal rule that forces judges to step aside in cases affecting groups that pour money into their campaigns, Georgetown law professor Roy Schotland said. But so far, no state has the enforcement mechanisms to do that, he said.

Another option is for states to fund the elections. Only Wisconsin does it now, and that program is funded by a tax-return checkoff that has run out of money.

Some reformers might like to ban political debates and platforms in judicial elections, but such speech is protected by the Constitution. State codes of conduct regulating judges' speech already are falling one by one, stricken in recent years by courts in Michigan, Georgia and Alabama as unconstitutional. And PACs have a First Amendment right to promote whatever view they want.

That's why some reformers at the conference advocated state or private commissions that review campaigns, instruct judges on proper responses to attacks and educate voters about how some commercials may be misleading.

"I'm not going to be able to tell the chamber of commerce they can't put out an ad saying vote for or against this judge because he's good or bad on tort reform," said Geri Palast, executive director of the Justice at Stake Campaign, a grass roots judicial reform group.