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Should We Elect Judges? Shady Money Answers Obvious Question

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By William Peacock, Esq. on October 29, 2014 3:12 PM

Is electing judges a good idea? Our gut reaction is "no," but for the sake of argument, let's take a look at the current state of the courts to see just what's happening with elected versus appointed judges.

In Pennsylvania, a former Supreme Court judge just dropped her appeal of her sentence for campaign-related crimes. In Illinois, a record-breaking 2004 campaign, for which $9.3 million was spent by or on behalf of the candidates, has been followed up with a 10-years-in-the-making retention election sequel, raising questions of why lawyers and businesses are dumping millions into that election -- to "buy" an outcome for their upcoming Illinois Supreme Court case perhaps? There's even money being dumped into a district court race in Missouri.

And then there's the hypocritical rules on raising funds -- in many states, judges mustn't solicit donations but do need to fund their campaign -- that led to a Supreme Court cert. grant earlier this year.

It's a mess, one that could be solved easily with one small change: Ending the popular election of judges.

Illinois as a Case Study

There are dozens of current and recent examples of why popular elections are a bad idea, especially the many state supreme court seats that are up for grabs. One example that has really accelerated over the past couple of weeks is Illinois Supreme Court Justice Lloyd Karmeier's retention run.

Ten years ago, this same race set the record at $9.3 million expended, most of which came from outside interests, reports the Chicago Tribune. This round seemed like a much quieter affair until a couple of weeks ago when the PAC Campaign for 2016, funded by $1.85 million in donations, started running attack ads against the incumbent judge. The ads talk about the $4.6 million that was donated to his campaign in the last election, followed by his overturning of massive verdicts against Philip Morris and State Farm.

Of the $1.85 million funding Campaign for 2016, $1.2 million came from two lawyers who work for Korein Tillery, a personal-injury firm that secured a $10.1 billion verdict against Philip Morris over its misleading advertising for "light" cigarettes. The verdict, of course, was overturned by Karmeier and the state supreme court, but the lawsuit was later resurrected, and is headed back to that court once again. The firm stands to gain $1.8 billion in legal fees if the case is successful, reports the Tribune.

Meanwhile, Karmeier now has the backing of the Republican State Leadership Committee, a super PAC that is funded, in part, by several large corporations, including the parent company of Philip Morris -- Altria Group. No matter how the race turns out, there will always be questions about how the funding on both sides affected the pending case.

Is the Alternative (Appointment) Better?

We can bemoan judicial elections, dirty money, and the like all we want, but appointments carry their own political and practical problems. Look no further than the constant appointment battles, or courts stacked with one president's life-long appointees for decades at a time, to see just a few issues with the federal system.

And it's not like that system is free from corruption. The Pittsburgh Post-Gazette points to two federal judges who went through the exhaustive nomination process, were vetted by the Department of Justice and Senate Judiciary Committee, and were approved by the U.S. Senate, only to be impeached in the last five years: U.S. District Court judges Samuel B. Kent (a George H.W. Bush appointee) and G. Thomas Porteous, Jr. (a Clinton appointee).

Then again, that's just two judges -- one done in by a bankruptcy scandal, the other for sexually assaulting staff members. There's going to be bad apples in every batch, but there seems to be far fewer when outside money and popular, political elections aren't involved.

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