The merits of merit selection

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 67-96

  Phillips, Thomas R ^a  

^a Baker Botts LLP ^*  (United States)

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EID: 63849086187     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (202)

1. See AM. JUDICATURE SOC'Y, JUDICIAL SELECTION IN THE STATES: APPELLATE AND GENERAL JURISDICTION COURTS (2008), http://www.ajs.org/selection/docs/Judicial%20Selection%20Charts.pdf (surveying judicial selection methods).
2. See, e.g., Project Vote Smart, General Information About the Governors' Offices, http://www.votesmart.org/pdf/govtable.pdf (last visited Dec. 14, 2008) (demonstrating almost uniform four-year terms for state governors with a majority of states imposing a limit of two consecutive terms). The one modern change to popular-branch elections has been the adoption in recent decades of term limits for legislators and executive officials in many states. Interestingly enough, only in Nevada was there a serious proposal to extend this reform to the judiciary: In the 1996 general election, voters imposed term limits on state and local officials, but by a separate vote declined to impose them on the judiciary. NEV. ASS'N OF COUNTIES, TERM LIMITS AND NEVADA: A BRIEF HISTORY OF TERM LIMITS AND THEIR APPROACHING IMPACT TO GOVERNMENT IN NEVADA 12, available at http://www.nvnaco.org/pdf-files/termlimits.pdf.
3. See infra Part I.B. and accompanying text.
4. See Paul D. Carrington & Roger C. Cramton, The Supreme Court Renewal Act: A Return to Basic Principles, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 467 (Roger C. Cramton & Paul D. Carrington eds., 2006).
5. See Letter from Thomas Jefferson to Samuel Kercheval (June 12, 1816) ("It has been thought that the people are not competent electors of judges learned in the law. But I do not know that this is true. . . . "), available at http://www.teachingamericanhistory.org/library/index.asp? document=459.
6. See William Rehnquist, U.S. Chief Justice, Remarks at American University's Washington College of Law (Apr. 9, 1996), available at http://www.law.cornell.edu/supct/justices/rehnau96.htm.
7. Comm'n on Presidential Debates, Debate Transcript: The Third McCain-Obama Presidential Debate (Oct. 15, 2008), available at http://www.debates. org/pages/trans2008d.html.
8. Rasmussen Reports, Supreme Court Update (Sept. 5, 2008) (on file with the Harvard Journal of Law & Public Policy).
9. Id.
10. See The Federalist Society for Law and Public Policy Studies, About Us, http://www.fed-soc.org/aboutus/ (last visited Oct. 5, 2008) (stating that "The Federalist Society... is founded on the principle[]... that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.").
11. See Jona Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, 49 U. MIAMI L. REV. 1, 43-45 (1994)
12. (citing Victor E. Flango & Craig R. Ducat, What Difference Does Method of Judicial Selection Make? Selection Procedures in State Courts of Last Resort, 5 JUST. SYS. J. 25, 33-35 (1979))
13. (discussing various studies' failures to link methods of selection with judicial voting or decision making); Jerome O'Callaghan, Another Test for the Merit Plan, 14 JUST. SYS. J. 477, 484 (1991);
14. see also Jason J. Czarnezki, A Call for Change: Improving Judicial Selection Methods, 89 MARQ. L. REV. 169, 173-74 nn.24 & 25 (2005) (collecting studies).
15. See David E. Pozen, The Irony of Judicial Elections, 108 COLUM. L. REV. 265, 287-88 (2008) (discussing research finding that elective judges favor in-state litigants, are more likely to rule in ways that are consistent with public opinion, and become more punitive in criminal cases as reelection approaches). Pozen also argues that "elected state supreme courts are associated with lower overall rates of litigation than appointed ones (the theory being that appointed judges' greater political independence generates more uncertainty about litigation outcomes)."
16. Id. at 288-S9
17. (citing F. Andrew Hanssen, The Effect of Judicial Institutions on Uncertainty and the Rate of Litigation: The Election Versus Appointment of State Judges, 28 J. LEGAL STUD. 205, 232 (1999)).
18. See Goldschmidt, supra note 11, at 5 & n.6.
19. Vermont, admitted to the Union in 1791, was the first state to provide for the election of some lower court judges. See ROGER K. WARREN, STATE JUDICIAL ELECTIONS: THE POUTTZATION OF AMERICA'S COURTS 3 (2006).
20. In 1810, Georgia made "justices of the inferior courts and justices of the peace" elective. FLETCHER M. GREEN, CONSTITUTIONAL DEVELOPMENT IN THE SOUTH ATLANTIC STATES, 1776-1860, at 202 (1930).
21. In 1832, Mississippi became the first stete to elect its entire judiciary. ALLAN ASHMAN & JAMES J. ALFINI, THE KEY TO JUDICIAL MERIT SELECTION: THE NOMINATING PROCESS 9 (1974).
22. See Larry C. Berkson, Judicial selection in the United States: A special report, 64 JUDICATURE 176, 176 (1980) ("By the time of the Civil War, 24 of 34 states had established an elected judiciary with seven states adopting the system in 1850 alone.").
23. In Kentucky, the legislature responded to the state constitution's prohibition on the removal of judges for less than criminal activity by repealing the act that created the Court of Appeals. The legislature then created a new court with different members. See 5 JOHN BACH MCMASTER, A HISTORY OF THE PEOPLE OF THE UNITED STATES: FROM THE REVOLUTION TO THE CIVIL WAR 162-66 (1901). The new court, however, was short-lived.
24. See id. at 166.
25. In Alabama, as a result of the supreme court's unpopular decision in Jones v. Watkins, 1 Stew. 81 (Ala. 1827) (holding that borrowers could not avoid a contract they signed voluntarily, high interest rate was not per se evidence of fraud, and statute of limitations barred suit), three of the court's judges were charged and tried before the Alabama Senate under the state constitution's removal-by-address provision, which provided that "judges could be removed for 'wilful [sic] neglect of duty, or other reasonable cause' even though the grounds were not sufficient for impeachment."
26. Howard P. Walthall, Sr., A Doubtful Mind: Understanding Alabama's State Constitution, 35 CUMB. L. REV. 7, 29 (2005) (alteration in original) (quoting ALA. CONST. of 1819, art. V, Judicial Department § 13).
27. Although the judges were exonerated, the state soon thereafter adopted an amendment to the constitution reducing judicial terms to six years. See id.
28. See WILLIS MASON WEST, THE STORY OF AMERICAN DEMOCRACY: POLITICAL AND INDUSTRIAL 454 (1922).
29. See Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. CIN. L. REV. 1345, 1348-52 (2003) (discussing, in particular, black enfranchisement and absentee voting, and effects thereof).
30. See George W. Liebmann, The New American Local Government, 34 URB. LAW. 93, 108 (2002) (stating that by "1954, 356 cities operated under this plan")
31. (citing HAROLD F. ALDERFER, AMERICAN LOCAL GOVERNMENT AND ADMINISTRATION 296-98 (1956)
32. and MANAGEMENT POLICIES IN LOCAL GOVERNMENT FINANCE 4 (J. Richard Aronson & Eli Schwartz, eds., 4th ed. 1996));
33. Caleb Nelson, A ReEvaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 AM. J. LEGAL HIST. 190, 207 (1993).
34. Nelson, supra note 19, at 207
35. (citing Kermit L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846-1860, 45 HISTORIAN 340-41 (1983)).
36. See MARTHA DERTHICK, DILEMMAS OF SCALE IN AMERICA'S FEDERAL DEMOCRACY 101-03 (1999).
37. See Roy A. Schotland, Myth, Reality Past and Present, and Judicial Elections, 35 IND. L. REV. 659, 661 (2002) ("[Research into the [state] constitutional convention histories found that, 'delegates from across the ideological spectrum criticized the party-directed distribution of [judicial] offices whether by the executive or the legislative branch[es].'"
38. (quoting Hall, supra note 20, at 346-47)).
39. See id. at 659-60 (stating that judicial elections were chosen "to elevate the judiciary and make it more independent of other branches so that it could better render justice").
40. But see, e.g., Glenn R. Winters, Selection of Judges - An Historical Introduction, 44 TEX. L. REV. 1081, 1082 (1966) (arguing that judicial elections were "not particularly designed for improving justice but [were] simply another manifestation of the populism movement").
41. In most states, voters in the nineteenth century voted by ballot, but in a few the voting was oral-so-called viva voce voting. See 1 CHARLES SEYMOUR & DONALD PAIGE FRARY, HOW THE WORLD VOTES: THE STORY OF DEMOCRATIC DEVELOPMENT IN ELECTIONS 246-47 (1918). But this was not a modern ballot; it was "a motley variety" of printed or written papers, prepared by political parties, candidates, or individual voters, with "no rule for the size and color of the ballot."
42. Id. at 247.
43. The "Australian," or official printed ballot, was not adopted anywhere in America until 1888, TRACY CAMPBELL, DELIVER THE VOTE: A HISTORY OF ELECTION FRAUD, AN AMERICAN POLITICAL TRADITION-1742-2004, at 97, 115 (2005), but by 1892 it had spread to thirty-two states.
44. See id. at 96-97;
45. SEYMOUR & FRARY, supra, at 250.
46. See MARK EDWARD LENDER & JAMES KIRBY MARTIN, DRINKING IN AMERICA: A HISTORY 54-56 (rev. & expanded ed. 1987).
47. See Nathan Richard Wildermann, Casenote, Bought Elections: Republican Party of Minnesota v. White, 11 GEO. MASON L. REV. 765, 767 (2003) (noting early control of judicial elections by political parties). In Texas, for example, the State Democratic Convention began endorsing state's rights candidates as political philosophies hardened. Sam Houston, the leading opponent of the Democratic establishment in Texas, said of the State Democratic Chair: "[O]ne drop of his blood would freeze a frog."
48. A.W. Terrell, Recollections of General Sam Houston, 16 SW. HIST. Q. 113,120 (1912).
49. See Kathleen M. Sullivan, Republican Party of Minnesota v. White: What Are the Alternatives?, 21 GEO J. LEGAL ETHICS 1327, 1336-37 (2008).
50. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 20 J. AM. JUDICATURE SOC'Y 178, 186 (1937).
51. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner, 76 N.Y.U. L. REV. 1383, 1393-94 (2001).
52. See From Arizona to New York, N.Y. TIMES, Feb. 12, 1911, at 10 (discussing a "concerted effort" to put a recall provision into the constitution of New York, but noting that "[w]e do not expect that the recall device will be put into the Constitution");
53. President Vetoes the Statehood Bill, N.Y. TTMES, Aug. 16, 1911, at 3 (discussing President Taft's veto of the bill to make Arizona a state as a result of its "pernicious" constitutional provision allowing judicial recall). Nevertheless, Arizona reinserted the provision after receiving statehood.
54. See ARIZ. CONST, art. 8, pt. 1, §1.
55. See, e.g., N.D. CONST, art. VI, §4 (requiring an extraordinary majority vote of the supreme court to declare a statute unconstitutional).
56. See AM. JUDICATURE SOC'Y, supra note 1.
57. See Nancy Marion, Rick Farmer & Todd Moore, Financing Ohio Supreme Court Elections 1992-2002: Campaign Finance and Judicial Selection, 38 AKRON L. REV. 567, 574 (2005) (noting that "[p]olitical parties educate voters" and "campaign literature increases partisan awareness and information levels about judicial candidates").
58. See Luke Bierman, Beyond Merit Selection, 29 FORDHAM URB. L.J. 851, 854 (2002) (noting that name recognition was "hardly better than party affiliation as an indicator of a judge's qualifications for office"). For example, in 1990, Washington Chief Justice Keith Callow lost to attorney Charles Johnson, who shared his name with a television anchor.
59. See Robb London, For Want of Recognition, Chief Justice is Ousted, N.Y. TIMES, Sept. 28, 1990, at B16;
60. Steve Miletich, Johnson and Smith - What's In a Name?, SEATTLE POST-INTELLIGENCER, Oct. 15, 1996, at B2;
61. Jim Simon, Upset Victor is Settling Into Court - 'He's Not the Oddball I Thought He Was,' SEATTLE TIMES, Aug. 25, 1991, at Bl. And in 2006, highly-regarded Los Angeles Superior Court judge Dzintra Janavs was ousted by a "bagel-shop owner who only recently reactivated her license to practice law."
62. Andrew Cohen, Bagels on the Bench a Bad Idea, WASH. POST, June 13, 2006, http://blog.washingtonpost.com/benchconference/ 2006/06/bagels-on-the-bench-a-bad-idea.html;
63. see also Joel Achenbach, Juris Impuris, MIAMI HERALD TROPIC, Aug. 28, 1988, available at http://www.tropicfan.com/juris%20impuris%20by%20joel%20achenbach.htm (discussing political consultants in Miami who tell candidates to change their names in order to win elections, and consultants who line up "floaters" with good names to run against judges who decline to hire the consultants). One observer has noted that voters like "color" names, such as Green, Brown, White, and Black.
64. See Rick Casey, How judge candidates waste money, HOUS. CHRON., Oct. 24, 2008, at Bl. ("'People seem to like colors/ Harris County [Democratic] chairman Gerry Birnberg told me .... Sure enough, [after party affiliation the] second most important factor in Harris County for putting people in black robes seems to be whether they had the foresight to acquire - through birth, marriage or legal action - a last name that appears on a palette."). Of course, the same problem exists in partisan states that choose judicial nominees in party primaries. For example, in 1976 an unknown Houston lawyer, Don Yarbrough, defeated a well-regarded appellate judge in the Democratic primary for an open seat on the Texas Supreme Court when voters confused him with Don Yarborough, a three-time gubernatorial candidate.
65. See Herbert M. Kritzer, Law Is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-First Century, 56 DEPAUL L. REV. 423, 435-36 (2007). Justice Yarbrough resigned in July 1977 after facing numerous ethics charges and being caught on tape plotting to kill a former business associate.
66. See id. at 436;
67. see also Anthony Champagne, Coming to a Judicial Election Near You: The New Era in Texas Judicial Elections, 43 S. TEX. L. REV. 9, 9-10 (2001).
68. See Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61 LAW & CONTEMP. PROBS. 79, 96 n.119 (1998).
69. See Berkson, supra note 15, at 177. Six years earlier, California voters adopted a system of gubernatorial appointments, confirmation by a commission, and retention elections for appellate judges.
70. See DEBORAH KILEY, MERIT SELECTION OF CALIFORNIA JUDGES 4-5 (1999), available at www.mcgeorge.edu/documents/centers/government/ccglp-pubs-merit-selection-pdf. pdf. Because the governor did not choose names from a commission-screened list, however, credit for initiating "merit selection" is generally given to Missouri.
71. MO. CONST, art. V, §25. See generally James E. Lozier, The Missouri Plan alkla Merit Selection: Is it the Best Solution for Selecting Michigan's Judges?, 75 MICH. B.J. 918, 918-20 (1996) (discussing the history of merit selection);
72. Glenn R. Winters, The Merit Plan for Judicial Selection and Tenure - Its Historical Development, 7 DUQ. L. REV. 61 (1968).
73. See Robert A. Schroeder & Harry A. Hall, Twenty-Five Years' Experience with Merit Judicial Selection in Missouri, 44 TEX. L. REV. 1088, 1091 (1966).
74. See, e.g., id.;
75. Shira J. Goodman & Lynn A. Marks, A View from the Ground: A Reform Group's Perspective on the Ongoing Effort to Achieve Merit Selection of Judges, 34 FORDHAM URB. L.J. 425, 447-48 (2007) ("[S]even states with a commission-based, merit selection system ... require legislative confirmation ....").
76. See Schroeder & Hall, supra note 38, at 1091-92.
77. See id. at 1092. Illinois and New Mexico's merit selection systems require a supermajority for retention.
78. See INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., SHARED EXPECTATIONS: JUDICIAL ACCOUNTABILITY IN CONTEXT 11 n.19 (2006), available at http://www.du.edu/legalinstitute/pubs/ sharedexpectations.pdf.
79. See G. Alan Tarr, Rethinking the Selection of State Supreme Court Justices, 39 WILLAMETTE L. REV. 1445, 1445 (2003).
80. See Peter J. Galie & Christopher Bopst, The Constitutional Commission in New York A Worthy Tradition, 64 ALB. L. REV. 1285, 1323-24 & n.342 (2001).
81. See Nonpartisan elections not enough to solve problem, MOBILE REG., May 7, 1999, at A ("[T]he ordinary voter understands little about judicial selection.").
82. See, e.g., Henry R. Glick, The Promise and the Performance of the Missouri Plan: Judicial Selection in the Fifty States, 32 U. MIAMI L. REV. 509, 521 (1978) (describing the means governors frequently use to control the appointment process for their own political ends).
83. See id. at 528 (noting that bar associations' representatives on nominating commissions thwart the reform of the judicial selection process because they are "preoccupied with the decisional propensities of potential judges").
84. See Jeffrey W. Stempel, Malignant Democracy: Core Fallacies Underlying Election of the Judiciary, 4 NEV. L.J. 35, 56-57 (2003) (noting that reform of judicial selection is unlikely because "[t]oo many vested interests like the current system[,] and they are in a strong position to thwart any movement toward merit selection by appointment").
85. American Judicature Society, Voters in Four Jurisdictions Opt for Merit Selection on November 4, www.ajs.org/selection/sel-voters.asp [hereinafter American Judicature Society, Voters] (last visited Dec. 14, 2008) (noting that decision of a fifth Missouri county to adopt merit selection for local judges in 2008 "marks the first time since 1985 that a jurisdiction has moved from contestable elections to merit selection"). Prior to that, voters had rejected merit selection in Ohio in 1987 and had declined to extend merit selection from appellate to trial courts in Florida in 2000 and South Dakota in 2004. See American Judicature Society, Chronology of Successful and Unsuccessful Merit Selection Ballot Initiatives, http://www.judicialselection. us/uploads/documents/merit-selection-chronology-1e233BS002692.pdf (last visited Dec. 14, 2008).
86. See, e.g., Charles Gardner Geyh, The Endless Judicial Selection Debate and Why it Matters for Judicial Independence, 21 GEO. J. LEGAL ETHICS 1259, 1262 (2008);
87. see also Janie L. Shores & Robert Martin Schaefer, The Judicial Article as Amended and Adopted in 1973, 33 CUMB. L. REV. 319, 335 (2003) (discussing non-partisan elections in eighteen states, including Georgia, Mississippi, and Florida).
88. See Roy A. Schotland, To the Endangered Species List, Add: Nonpartisan Judicial Elections, 39 WILLAMETTE L. REV. 1397, 1414 (2003) (discussing North Carolina, where Republicans claimed that because they had recently increased their share of judgeships, the Democratic legislature's shift to nonpartisan elections was "ironically partisan").
89. See generally Frederick G. Slabach, Equal Justice: Applying the Voting Rights Act to Judicial Elections, 62 U. CIN. L. REV. 823 (1994);
90. Pasquale A. Cipollone, Comment, Section 2 of the Voting Rights Act and Judicial Elections: Application and Remedy, 58 U. CHI. L. REV. 733 (1991);
91. Kristen Lundguard Izatt, Note, The Voting Rights Act and Judicial Elections: Accommodating the Interests of the States Without Compromising the Goals of the Act, 1996 U. ILL. L. REV. 229;
92. Anna M. Scruggs, et al., Recent Voting Rights Act challenges to judicial elections, 79 JUDICATURE 34 (1995).
93. See George W. Soule, The Threats of Partisanship to Minnesota's Judicial Elections, 34 WM. MITCHELL L. REV. 701, 726 (2008). Wisconsin offers limited public financing for judicial and other races, but candidates capable of raising substantial campaign funds have rejected public financing and its accompanying spending restrictions.
94. See id. at 726-27.
95. See Thomas R. Phillips, Electoral Accountability and Judicial Independence, 64 OHIO ST. L.J. 137, 144-46 (2003) (discussing the results of a 2001 survey).
96. Roy A. Schotland, New Challenges to States' Judicial Selection, 95 GEO. L.J. 1077, 1081 (2007).
97. See William C. Cleveland III, Money and Judicial Elections, 68 DEF. COUNS. J. 393, 393 (2001) (citing various studies, including an examination of Louisiana district court elections finding that "70 percent of contested elections are won by the candidate who spent the most money"; an Ohio citizens' committee finding "that nine of 10 Ohioans believe that judicial decisions are affected by political contributions"; and a Pennsylvania commission's findings that "59 percent of Pennsylvania voters felt that too much money was spent on judicial campaigns,... 88 percent thought judges' decisions were influenced at least some of the time by campaign contributions, ... [and] 37 percent thought it was most or all of the time").
98. Schotland, supra note 50, at 1405 (alteration in original) (internal quotation marks omitted)
99. (quoting William C. Bayne, Lynchard's Candidacy, Ads Putting Spice into Judicial Race: Hernando Attorney Challenging Cobb, COM. APPEAL, Oct. 29, 2000, at DSl).
100. See Carrington, supra note 35, at 105-06.
101. See id.;
102. Anthony Champagne & Kyle Cheek, The Cycle of Judicial Elections: Texas as a Case Study, 29 FORDHAM URB. L.J. 907, 915 (2002) (noting that, during the 1998 Texas Supreme Court campaign, the Texas Medical Association donated over $181,000 in direct contributions and encouraged doctors to donate at least $250,000 after the court had earlier struck down certain tort-reform laws).
103. See Anthony Champagne, Tort Reform and Judicial Selection, 38 LOY. L.A. L. REV. 1483, 1484-85 (2005) (noting that the intense politicization of Alabama's supreme court elections following the Court's partial invalidation of Alabama's tort reform legislation led one scholar to conclude that these elections had become "a battle-ground between businesses and those that sue them" (internal quotation marks omitted));
104. see also Glenn C. Noe, Comment, Alabama Judicial Selection Reform: A Skunk in Tort Hell, 28 CUMB. L. REV. 215, 232-33 (1998) (noting that, following a ten million dollar campaign, three justices of the California Supreme Court were defeated in their 1986 retention elections as a result of public response to the justices' position on the constitutionality of the death penalty).
105. Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY, L.A. L. REV. 1391, 1398-99 (2001) (discussing U.S. Chamber of Commerce's efforts to support election of pro-business judges in Alabama, Illinois, Michigan, Mississippi, and Ohio by both direct campaign contributions and issue advertising). In the 2000 election cycle, for example, "[private] individuals constitute[d] the largest source of campaign money in congressional elections, giving approximately $567.7 million... to all primary and general election candidates in the... House and Senate elections."
106. Paul S. Herrnson & Kelly D. Patterson, Financing the 2000 Congressional Elections, in FINANCING THE 2000 ELECTION 106, 121 (David G. Magleby ed., 2002). By contrast, in that same year, state supreme court candidates raised $45.6 million for their campaigns, with lawyers, business interests, and political parties contributing more than half of all campaign funds.
107. See Phyllis Williams Kotey, Public Financing for NonPartisan Judicial Campaigns: Protecting Judicial Independence While Ensuring Judicial Impartiality, 38 AKRON L. REV. 597, 616 & nn.162-63 (2005).
108. See Roy Schotland, New Challenges to States' Judicial Selection, supra note 54, at 1080 ("The sea change came in 2000, when judicial candidates' campaign spending soared and interest groups were dimensionally more active than ever before, even dominating some races.").
109. See, e.g., DEBORAH GOLDBERG ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS: HOW 2000 WAS A WATERSHED YEAR FOR BIG MONEY, SPECIAL INTEREST PRESSURE, AND TV ADVERTISING IN STATE SUPREME COURT CAMPAIGNS 17, 21-24 (2002), available at https://www.policyarchive.org/bistream/handle/10207/5936/20020201.pdf (reproducing negative storyboards from television ads funded by independent groups);
110. see also Stuart Banner, Note, Disqualifying Elected Judges from Cases Involving Campaign Contributors, 40 STAN. L. REV. 449, 476-78 (1988) (suggesting that imposing limits on contribution size may give an advantage to wealthy candidates because candidates can still fund their own campaigns, and that absolute prohibitions against large contributions may prevent well-qualified but unknown candidates from getting recognition).
111. See B. Michael Dann & Randall M. Hansen, Judicial Retention Elections, 34 LOY. L.A. L. REV. 1429,1431-37 (2001) (describing judicial election campaigns in Tennessee, California, and Nebraska in which judges lost their seats on the court when they were portrayed as being "soft on crime");
112. see also DEBORAH GOLDBERG ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2004: HOW SPECIAL INTEREST PRESSURE ON OUR COURTS HAS REACHED A "TIPPING POINT" - AND HOW TO KEEP OUR COURTS FAIR AND IMPARTIAL 10 (Jesse Rutledge, ed. 2004), available at http://brennan.3cdn.net/ dd00e9b682e3ca2f17-xdm6io68k.pdf ("[In 2004 i]n Illinois, the Justice For All Political Action Committee, a trial lawyer and labor group, ran an ad criticizing Republican Judge Lloyd Karmeier as 'lenient' because he 'gave probation to kidnappers who tortured and nearly beat a 92-year-old grandmother to death.'").
113. Randall T. Shepard, Chief Justice of Indiana, Panel Discussion at the Georgetown University Law Center & American Law Institute's Fair and Independent Courts: A Conference on the State of the Judiciary (Sept. 29, 2006), available at http://www.law.georgetown.edu/news/documents/CoJ092906- panel5.pdf.
114. 536 U.S. 765 (2002).
115. MINN. CODE OF JUD. CONDUCT Canon 5(A)(3)(d)(i) (2000).
116. White, 536 US. at 780, 788.
117. See Geyh, supra note 49, at 1267.
118. See, e.g., Stephanie Cotilla & Amanda Suzanne Veal, Note, Judicial Balancing Act: The Appearance of Impartiality and the First Amendment, 15 GEO. J. LEGAL ETHICS 741, 742 (2002) (noting that "nearly all states have adopted standards of judicial conduct modeled after the ABA Model Code of Judicial Conduct").
119. The ABA Model Code was promulgated in 1972. Soon, the judicial discipline systems in most states became primarily responsible for enforcing the code provisions in their respective jurisdictions. See Adam R. Long, Keeping Mud Off the Bench: The First Amendment and the Regulation of Candidates' False or Misleading Statements in Judicial Elections, 51 DUKE L.J. 787, 795-96 (2001).
120. See MODEL CODE OF JUD. CONDUCT (2007).
121. See id. Canon 4 (setting restrictions on the speech and conduct of judges and judicial candidates).
122. See, e.g., WIS. SUP. CT. RULE 20:8.2(a)-(b) (providing that a "lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge ... or of a candidate for election or appointment to judicial or legal office," and affirming that any "lawyer who is a candidate for judicial office shall comply with the applicable provisions in the code of judicial conduct").
123. Bauer v. Shepard, No. 3:08-CU-196-TLS, 2008 WL 1994868 (N.D. Ind. May 6, 2008);
124. Duwe v. Alexander, 490 F. Supp. 2d 968 (W.D. Wis. 2007) (enjoined as applied, not on a facial challenge);
125. Ind. Right to Life v. Shepard, 463 F. Supp. 2d 879 (N.D. Ind. 2006);
126. N.D. Family Alliance v. Bader, 361 F. Supp. 2d 1021 (D.N.D. 2005);
127. Family Trust Found, of Ky., Inc. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).
128. See Pa. Family Inst., Inc. v. Celluci, 521 F. Supp. 2d 351 (E.D. Pa. 2007);
129. Wolfson v. Brammer, No. CIV 06-2357, 2007 WL 2288024 (D. Ariz. Aug. 8, 2007).
130. See Kan. Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006);
131. Alaska Right to Life Political Action Comm. v. Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005), vacated as unripe, 504 F.3d 840 (9th Cir. 2007).
132. MODEL CODE OF JUD. CONDUCT Canon 5(A)(3)(d)(ii) (1997).
133. See Bauer, 2008 WL 1994868;
134. Duwe, 490 F. Supp. 2d 968 (enjoining clause as applied);
135. Ind. Right to Life, 463 F.Supp.2d 879;
136. Family Alliance, 361 F. Supp. 2d 1021;
137. Family Trust Found., 345 F. Supp. 2d 672.
138. See Wolfson, 2007 WL 2288024.
139. Pa. Family Inst., Inc. v. Black, 489 F.3d 156 (3d Cir. 2007);
140. Carey v. Wolnitzek, No. 3:06-36-KKC, 2006 WL 2916814 (E.D. Ky. Oct. 10, 2006);
141. Wells v. Hardin, No. 04-2585, 2006 WL 1586565 (E.D. La. May 26, 2006).
142. See, e.g., T.C. Brown, Judicial Hopefuls Reluctant to Give Stances on Issues, CLEVELAND PLAIN DEALER, Sept. 23, 2002, at Al (criticizing candidates for refusing to respond to a questionnaire about their views on political issues).
143. Republican Party of Minn. v. White, 416 F.3d 738 (8th Cir. 2005) (en banc), cert. denied, 546 U.S. 1157 (2006).
144. See Alan B. Morrison, Judges and Politics: What To Do and Not Do About Some Inevitable Problems, 28 JUST. SYS. J. 283, 286 (2007) (noting that "[v]irtually every state except Texas recognizes the special problem of a sitting judge or candidate for judicial office making a direct request request for a contribution to a supporter.")
145. White, 416 F.3d at 763-67.
146. Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) (holding that the canon prohibiting judicial candidates from personally soliciting campaign contributions violated First Amendment).
147. MODEL CODE OF JUD. CONDUCT Canon 2(A) (2007).
148. Duwe v. Alexander, 490 F. Supp. 2d 968, 970 (W.D. Wisc. 2007).
149. Republican Party of Minn. v. White, 536 U.S. 765, 794 (2002) (Kennedy, J., concurring).
150. See Schotland, supra note 54, at 1096-97.
151. See Owen G. Abbe & Paul S. Herrnson, Campaigning For Judge: Noisier, Nastier?, CAMPAIGNS & ELECTIONS, Apr. 1, 2002, at 43 ("[A] growing number of judicial elections are competitive and involve substantial campaign spending and significant campaign activity by outside groups. . . . [M]ore and more judges are turning to political consultants for help with their campaigns," and in turn, interest groups targeting judges hire staff including media consultants, pollsters, and researchers.).
152. See Sandra Day O'Connor, Letter to Conference Participants, Sandra Day O'Connor Project on the State of the Judiciary, 2008 Conference: Our Courts and Corporate Citizenship (on file with author) ("The perception, or the reality, that justice can be 'bought' is bad for the legitimacy of our courts, and bad for democracy.");
153. see also Owen G. Abbe & Paul S. Herrnson, How Judicial Election Campaigns Have Changed, 85 JUDICATURE 286, 287 (2002) ("[J]udicial elections can no longer be characterized as inexpensive, quiet, uncompetitive affairs."). The authors surveyed 261 judicial candidates from twenty-nine states, concluding that "judicial elections are even more competitive than elections for the U.S. House of Representatives and most state legislatures."
154. Id, at 289.
155. See James Michael Scheppele, Note, Are We Turning Judges into Politicians?, 38 LOY. L.A. L. REV. 1517, 1528 (2005) ("By contributing to a judge's campaign, persons and entities are essentially 'lobbying' the judiciary in a fashion similar to lobbying the legislature.").
156. See Michael Grabell, Democrats short on courtroom recognition: But new judges may have more skills than they're given credit for, DALLAS MORNING NEWS, Nov. 9, 2006, at 18A;
157. Michael Grabell & Gromer Jeffers, Jr., Dozens of judges lose seats in Democratic tidal wave: Victories reflect general shift as GOP loses grip in Dallas County, DALLAS MORNING NEWS, NOV. 8, 2006, at 15A;
158. see also Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 780 (1995) ("Republican straight-ticket voting [in 1994] contributed to the defeat of nineteen Democratic judges and a Republican sweep of all but one of the forty-two contested races for countywide judgeships in Harris County, Texas, which includes Houston.").
159. In 2008, Democrats won twenty-two of twenty-six countywide contested judicial races in Harris County, Texas. Despite expensive campaigns mounted by individual candidates, party organizations, and independent groups, all evidence is that these efforts made no impact. The four Republicans who won shared one common link: Their opponents had unusual names. The defeated were Mekisha Murray, Goodwille Pierre, Andreas Pereira, and Ashish Mahendru. See Mary Flood & Brian Rogers, Election defeat stuns incumbent Harris Co. judges, HOUS. CHRON., Nov. 6, 2008, http://www.chron.com/disp/story. mpl/hotstories/6097733.html.
160. Of the 3912 elections between the years 1964 and 1994 in the ten states
161. (citing Larry Aspin & William K. Hall, Thirty Years of Judicial Retention Elections: An Update, 37 SOC. SCI. J. 1, 3, 8-10 (2000)).
162. Wyoming's Walter Urbigkit lost following concerns that he was too lax on criminals. See CONSTITUTIONAL POLITICS IN THE STATES: CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS 169 (G. Alan Tarr ed., 1996). Similarly, California's Chief Justice Rose Bird, Justice Cruz Reynoso, and Justice Joseph Grodin were defeated in a 1986 retention election after being portrayed as soft on crime.
163. See Dann & Hansen, supra note 63, at 1431-32.
164. See Patrick Emery Longan, Judicial Professionalism in a New Era of Judicial Selection, 56 MERCER L. REV. 913, 915-17 (2005) (attributing Tennessee Justice Penny White's defeat to her failure to impose the death penalty in a case involving the rape and murder of an elderly woman).
165. See Laura Parker, Judges pay when their salaries tied to lawmakers': Raises entangled in political issues, re-election jitters, USA TODAY, Sept. 24, 2007, at 4A (noting that Pennsylvania Justice Russell Nigra lost his seat due to public outcry following an unpopular decision to raise the salaries of various government officials, including Nigro's).
166. See Rebecca Love Kourliss, Judicial Independence and Independent Judges, 80 DENV. U. L. REV. 746, 749-50 (2003).
167. See Jordan M. Singer, Knowing is Half the Battle: A Proposal for Prospective Performance Evaluations in Judicial Elections, 29 U. ARK. LITTLE ROCK L. REV. 725, 729-30 (2007) ("In 2000, candidate spending in the twenty states with supreme court races rose to almost $45.5 million, a 61% increase over the prior high, and spending set records in ten states. That year, interest groups in five states alone (Alabama, Illinois, Michigan, Mississippi, and Ohio) collectively spent $16 million on hotly contested supreme court elections." (footnotes omitted)).
168. See Charles Gardner Geyh, Why Judicial Elections Stink, 64 OHIO ST. L.J. 43, 54-55 (2003).
169. See Anthony Champagne & Kyle Cheek, The Cycle of Judicial Elections: Texas as a Case Study, 29 FORDHAM URB. L.J. 907, 931-32 (2002) (On December 6, 1987, "the national television news program 60 Minutes featured the Texas Supreme Court in a story titled 'Is Justice for Sale?' The program questioned whether Texas judges were being exposed to undue influence by deep pocket interests contributing heavily to candidates friendly to their views. Current Chief Justice Tom Phillips concedes that the story 'had a tremendous impact on Texas judicial politics,' while his predecessor, John Hill, has argued that the 'news reports only reflect a growing belief among many citizens of Texas that [the] state's legal system no longer dispenses evenhanded justice.'").
170. See Offutt v. United States, 348 U.S. 11, 14 (1954) ("[J]ustice must satisfy the appearance of justice.").
171. Compare AM. TORT REFORM FOUND., JUDICIAL HELLHOLES 2 (2007), available at http://www.atra.org/reports/hellholes/report.pdf ("Trial lawyer contributions make up a disproportionate amount of donations to locally elected judges.
172. A poll found that 46 percent of judges said donations influenced their judicial decisions."), with EMILY GOTTLIEB, CHAMBER OF HORRORS: THE HIJACKING OF THE 2004 ELECTIONS BY THE U.S. CHAMBER OF COMMERCE 10, available at http://www.centerjd.org/archives/studies/ChamberWhitePaper. pdf ("Despite fundamental constitutional concerns, corporate front groups like the Chamber's Institute for Legal Reform (ILR) have broadened their efforts to strong-arm judges into voting their way and tried to defeat judges who don't.").
173. See Mark A. Behrens & Carv Silverman, The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 11 CORNELL J.L. & PUB. POL'Y 273, 283 (2002) (A 1998 study sponsored by the Texas Supreme Court found that 83% of Texas adults, 69% of court personnel, and 79% of Texas attorneys believed that campaign contributions influenced judicial decisions 'very significantly' or 'fairly significantly.'").
174. In Texas, about two thirds of all judicial elections since 1980 have been unopposed. See Elizabeth Ames Jones, Editorial, Remove the partisanship, money from judicial races, SAN ANTONIO EXPRESS-NEWS, NOV. 9, 2003, at 5H (noting that 65% of Texas judges run in unopposed elections).
175. See id. ("[A]bout [fifty] percent of all [Texas district and appellate] judges are initially appointed by the governor.... [Twenty] percent of sitting judges have never had an opponent.").
176. Editorial, Three Gavels for Tennessee, WALL ST. J., May 27, 2008, at A20 (noting that Tennessee's decision to allow its merit selection system to expire "marked the first time a merit selection plan ha[d] been ousted in any state").
177. See id. (noting that no other states have done away with merit selection). 110. See American Judicature Society, Voters, supra note 48 (noting that in 2008 Greene County became the fifth Missouri county to adopt judicial merit selection).
178. See Ronald W. Chapman, Judicial Roulette: Alternatives to Single-Member Districts as a Legal and Political Solution to Voting-Rights Challenges to At-Large Judicial Elections, 48 SMU L. REV. 457, 468 (1995) ("The smaller the group a judge serves, the greater the likelihood that constituents will expect a judge to be responsive to their special needs."
179. (quoting Mary T. Wickham, Note, Mapping the Morass: Application of Section 2 of the Voting Rights Act to Judicial Elections, 33 WM. & MARY L. REV. 1251, 1281-82 (1992) (internal quotation marks omitted))).
180. See Thomas R. Phillips, Keynote Address: Electoral Accountability and Judicial Independence, 64 OHIO ST. L.J. 137, 146-47 (2003) (noting that public financing, at least for state supreme court elections, has received strong public support as reflected by polling data).
181. See, e.g., Charles Gardner Geyh, Publicly Financed Judicial Elections: An Overview, 34 LOY. L.A. L. REV. 1467, 1478-80 (2001) (discussing the hurdles to adoption of a public financing system);
182. Editorial, Judges and their donors, CHI. TRIB., Mar. 19, 2007, at 16 (noting that public financing does not eliminate the influence of trial lawyers and business organizations, which can "still spend as much as they want airing their own ads").
183. See JAMES SAMPLE ET AL., BRENNAN CTR. FOR JUSTICE, FAIR COURTS: SETTING RECUSAL STANDARDS 11 (2008), http://www.brennancenter.org/content/resource/-fair-courts-setting-recusal- standards ("In a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, over a quarter (26%) of the respondents said they believe campaign contributions have at least 'some influence' on judges' decisions and nearly half (46%) said they believe contributions have at least 'a little influence.' The survey also revealed that 56% of state court judges believe 'judges should be prohibited from presiding over and ruling in cases when one of the sides has given money to their campaign.'"
184. (quoting GREENBERG QUINLAN ROSNER RESEARCH & AMERICAN VIEWPOINT, JUSTICE AT STAKE - STATE JUDGES FREQUENCY QUESTIONNAIRE 5, 11 (2002), http://www.gqrr.com/articles/1617/1411-JAS- judges.pdf.)).
185. See George D. Brown, Political Judges and Popular Justice: A Conservative Victory or a Conservative Dilemma?, 49 WM. & MARY L. REV. 1543, 1592 (2008) ("Neutrality in the conduct of a trial requires a decision maker who is not subject to pressure from the parties or, a fortiori, from the public at large. There is something contrary to this ideal in the notion of an adjudicator campaigning on how he or she is going to adjudicate. The existence of political 'debts,' especially campaign contributions, 'owed' to parties who then litigate before the debtor raises the same concerns." (footnotes omitted)). Professor Brown also raises the possibility that as a result, "federal court distrust of politicized state courts will affect relations between the two systems."
186. Id.
187. See id.
188. Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Vermont, and Virginia employ appointive judicial selection methods. See Roy A. Schotland, Judicial Elections, in GUIDE TO POLITICAL CAMPAIGNS IN AMERICA 391-92 (Paul S. Herrnson et al. eds., 2005) ("Thirty-nine states have judicial elections, and eleven states are strictly appointive. In twenty states, all or some judges run in nonpartisan elections; in sixteen all or some run in partisan elections; and in nineteen all or some face 'retention' elections in which the voters either keep or fire an incumbent judge." (citation omitted)).
189. Sheryl Gay Stolberg, Panel Approves Roberts, 13-5, As 3 of 8 Democrats Back Him, N.Y. TIMES, Sept. 22, 2005, at Al (discussing Senator Feinstein's reasons for opposing John Roberts).
190. For example, presidential candidates use barely-disguised code words in telling voters what kind of judges they will appoint. See, e.g., David G. Savage, John McCain: Two visions of the Supreme Court, L.A. TIMES, May 19, 2008, at A8 (quoting both McCain and Obama discussing "activist judges," McCain discussing the "clear meanings of the Constitution," and Obama discussing judges' "empathy"). Both sides of the political spectrum have created cottage industries that raise millions of dollars to support or oppose nominees for the Supreme Court and even some courts of appeals.
191. See Debra Rosenberg, Bush's Choice: His judicial record is limited, his credentials unquestioned. That makes John G. Roberts a tough target., NEWSWEEK, July 20, 2005, http://www.newsweek.com/id/50355/ output/print.
192. George F. Will, The Tangle of Egos and Rules, NEWSWEEK, July 26, 1993, at 60.
193. See generally John C.P. Goldberg, Ten Half-Truths About Tort Law, 42 VAL. U. L. REV. 1221, 1270-73 (2008) (discussing how tort law has often been codified).
194. See generally Daniel E. Witte & Paul T. Mero, Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice, 2008 BYU L. REV. 377, 405-06 (2008) (discussing a recent California Court of Appeals decision which held that parents do not have a constitutional right to home school their children and that parents who do home school their children may be guilty of a criminal infraction
195. (citing In re Rachel L., 73 Cal. Rptr. 3d 77 (Ct. App. 2008))).
196. Note that In re Rachel L. was superseded by a grant of rehearing, and was reversed in part by Jonathan L. v. Superior Court, 81 Cal. Rptr. 3d 571, (Ct. App. 2008).
197. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005) (holding that Title IX, which prohibits sex discrimination in schools, provided a cause of action for retaliation to a male high school girls' basketball coach who received negative work evaluations and was ultimately removed after complaining that his team was not receiving equal funding).
198. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003) (holding a Massachusetts law denying marriage to same-sex couples unconstitutional).
199. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 316 (2000) (holding a Texas high school's tradition of sanctioning student-led prayer at football games unconstitutional);
200. Bush v. Holmes, 919 So. 2d 392, 415 (Fla. 2006) (Bell, J., dissenting) (rejecting the Florida Supreme Court's holding that the public school system "is the exclusive means set out in the constitution for the Legislature to make adequate provision for the education of children," because such an exclusivity requirement is neither expressed in the constitution nor necessarily implied (internal quotation marks omitted)).
201. See Johnson v. California, 543 U.S. 499, 509 (2005) (ruling that a California prison policy that segregated prisoners by race, apparently for security purposes, was constitutionally suspect).
202. OLIVER WENDELL HOLMES, The Profession of Law: Conclusion of a Lecture to Undergraduates of Harvard University (Feb. 17, 1886), in COLLECTED LEGAL PAPERS 29, 30 (Harcourt, Brace & Co. 1920).