Politico Magazine just published an illuminating article on the money that goes into judicial elections in the United States, written by Sue Bell Cobb, the former Chief Justice of the Alabama State Supreme Court. The article, “I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There: How Money is Ruining America’s Courts,” contains many revelations by Cobb about the state of our elected judicial system.
Cobb was a judge for over 30 years, and spent four years as the Chief Justice of Alabama’s courts. When she was elected, she was one of the candidates in the most expensive judicial race that year. She raised a grand total of $2.6 million to win, and the candidate that she beat raised over $5 million. She described the difficult process of calling up friends and acquaintances to ask for money–although laws differ from state to state, in Alabama she was allowed to ask directly for money. She could even talk to lawyers who had argued cases in front of her in the past, or lawyers who might argue in front of her in the future.
Cobb highlighted the problematic logic inherent in this system by pointing out that it’s difficult to imagine that the judges who ask for money wouldn’t feel beholden to those who give it, and that lawyers or other businesses wouldn’t feel pressured to donate out fear that a lack of donation could play out in courtroom biases. Or, as Cobb also points out, it could be less nefarious than that. Interest groups could back candidates heavily that they know would rule in their favor based on ideology alone. Cobb puts it like this:
In 2005, shortly before I joined the Alabama Supreme Court, the justices heard appeals in 18 cases in which businesses had been hit with jury verdicts. The court—dominated by Republicans backed by business interests—threw out 17 of these verdicts. I don’t think that the justices who voted to overturn these cases were corrupt. My take is that they were genuinely ruling according to their beliefs. But what this proves is how proficient special interests have become at identifying and then supporting candidates who are reliable votes for their cause.
According to the American Bar Association, 38 states currently have some type of judicial election at the state high court level; 39 states have judicial elections at the appellate level; and 39 states have judicial elections in trial courts of general jurisdiction. Those who don’t have elections appear to mainly rely on appointments to fill their courts. While those can be inherently partisan too, depending on who does the appointing, there’s less of an issue of justices being seemingly beholden to those who give them money.
Cobb isn’t the only judge to speak out against a judicial election system. Texas Supreme Justice Don Willet has essentially said that he doesn’t agree with the system of judicial elections either.
There’s also evidence to back up that judicial elections can affect justices’ behavior. The American Constitution Society for Law and Policy released a study in 2013 entitled “Justice At Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions.” There were multiple revelations in the study, but one of the most telling was this:
The data confirm a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
Although Cobb’s comments are not anything new, they do shed a particularly poignant light onto the difficulties that a judge seeking reelection faces. Cobb ends her piece with a sort of call to action, saying, “judges are not, and should never be, like ordinary politicians. We cannot and should not promise anything for those who elect us, but to be fair.” Let’s hope people are listening.