A recent study by New York University Law School reports that $200 million has been spent in the last decade in campaigns to elect state judges, and this year appears to be heading for a new record.
It is a continual source of astonishment to the rest of the civilized world that most judges in the United States have to stand for election; 39 of the 50 states have some kind of election procedure. The only other countries in the world to do so are Switzerland, where some of the smaller cantons elect their judges, and Japan, where Supreme Court justices face retention elections (though in practice those are never anything but a formality). In most countries of Europe whose legal system derives from Roman civil law, judges are career professionals who graduate from specialized schools and are chosen by a rigorous competitive examination (in some years only 5 percent of candidates pass France's notorious grueling four-day-long exam); in the common-law countries judges are either selected by independent commissions or appointed by the government.
Half of the U.S. state judges surveyed by NYU researchers acknowledged that campaign contributions affect decisions, and other studies have found that judges invariably start imposing stiffer sentences in the months just prior to facing the voters — apparently knowing that tales of convicts who get out of prison and commit another crime are a staple of attack TV ads by candidates challenging incumbent judges.
The worst recent example of this phenomenon occurred in Wisconsin in 2008, when a small-town Republican trial judge successfully unseated a sitting state Supreme Court justice after running TV ads falsely accusing the justice, who is black, of helping to free a convicted rapist, who is also black.
(In fact, the only connection between the two was that the justice, as a public defender 20 years earlier, had represented the man on an appeal, citing an error in his trial; though the state Supreme Court agreed that an error had occurred, it ruled that it was not consequential enough to reverse the conviction, and he went on to serve his full original sentence. The TV ads juxtaposed images of the two men while the narrator intoned: "Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?")
This year's judicial elections have been marked by a spate of single-issue campaigns by well-funded conservative and business groups aimed at throwing out judges who ruled the wrong way on same-sex marriage, abortion, or liability limits. In Iowa, three state Supreme Court justices — who were part of the unanimous 7–0 ruling in April 2009 that upheld same-sex marriage in the state — are facing retention elections and have been targeted in a TV ad campaign as "liberal out of control judges."
The American system for choosing judges becomes all the weirder when contrasted with all the time and energy the U.S. State Department devotes to hectoring developing nations on the importance of an independent judiciary in safeguarding democracy, establishing the rule of law, and promoting the necessary conditions for economic investment by assuring that private property rights and contracts will be enforced without favoritism or corruption. It was exactly the fear of judges being swayed by political pressure that prompted the framers of the U.S. Constitution to seek to insulate the Federal judiciary with lifetime appointments. And Washington, Hamilton, Adams, and other stanch Federalists unmistakably intended the Federal courts to eventually supplant the state courts altogether; they (and Madison, too, despite his later anti-Federalist leanings) had been appalled by the amateurism, favoritism, corruption, and confusion of the state courts as radical republicans in many state legislatures attacked the common law as an aristocratic English importation, rushed through new statutes abrogating contracts and favoring special interests, and impeached judges for nothing more than opposing "the will of the people."
The Federalist defenders of judicial independence argued, and even many moderate republicans agreed, that the common law and an independent judiciary was itself a bulwark of liberty that (among other important things) protected America's growing economic prosperity by guaranteeing private property rights against the passions of public sentiment.
Adams's judiciary act, which greatly expanded the Federal courts and declared that the common law of crimes was part of their jurisdiction (meaning that the Federal courts could in effect usurp at will most of the functions of the state courts) was however quickly overturned by the Jeffersonian republicans who followed him. And the push to make judges accountable to the "will of the people" was part and parcel of a larger radical republican ideology that disparaged professional credentials and insisted that in a true democracy the "common man" was as capable of filling high office as a member of the university-educated elite (sounds familiar . . .). Thus the states of the United States today have the distinction not only of electing law judges but — similarly unheard of in any other democracy — their attorneys general, local prosecutors, sheriffs, county treasurers, clerks of the court, recorders of deeds, probate judges, school boards, and other posts where professional competence might be thought to be a more important criterion than popularity.
At least the Jeffersonian and Jacksonian republicans made no bones about the obvious fact that they were politicizing these offices by putting them up to popular vote. This year's campaigns targeting sitting judges have for the most part adopted the Orwellian tactic of declaring that it is the defenders of an independent judiciary who are "partisan." Iowa for Freedom, the group trying to oust the state's three "liberal" Supreme Court judges (among Iowa for Freedom's supporters, by the way, to the tune of $57,000, is a Mississippi group that organizes boycotts of companies that "promote the spread of homosexuality"), also wants to dismantle the state's current merit selection system altogether — claiming that it is "too political."