The Dangerous Impact of Money-Driven Judicial Elections

In a recent article, the Economist discusses how "money and back-room politicking are contaminating the selection of judges." The relative ease with which partisan groups can reach voters during a contested judicial election cycle has caused an ever-increasing flood of money to pour into judicial elections. As a result, a candidate's financial and political backing now outweighs their actual qualifications in determining who serves on the bench. In addition, money-driven elections threaten judicial independence because a judge may feel indebted to campaign donors or politicians who aided them in their election.

The situation has become further complicated with the escalation of expensive anti-retention campaigns launched by conservative groups intent on removing judges who made unpopular rulings. The targeted judges face an uphill battle unless they respond to their challengers by raising their own money to combat the campaign against them, reinforcing fears of outside influence; "[a]s right-leaning groups try to unseat judges, left-leaning trial lawyers and bar associations step in with their own donations to rescue them."

Judicial impartiality and fairness are also called into question since most states do not have recusal rules in place that require a judge to remove him or herself when a campaign supporter appears in that judge's courtroom. Recusal may also be difficult because of inadequate disclosure rules, allowing campaign donors to keep their contributions hidden by going through political parties or front organizations.

As a solution, the Economist suggests that judicial elections be replaced with a well-designed merit system. At the very least, states should ensure their judicial election systems are structured as public primary elections, improve judicial recusal requirements, and provide robust public funding to keep judges from "dialing for dollars."