round of state judicial elections broke previous records for the amounts spent
on judicial campaigns around the country. The dominant role played by
special-interest money — including money from super PACs financed by undisclosed
donors — has severely weakened the principle of fair and impartial courts.
In Florida, for example, three respected State Supreme Court justices won their
retention election battles, but only after they were forced to raise more than
$1.5 million in total. They had put on expensive campaigns because they were
targeted for defeat by moneyed conservatives who wanted to drive them off the
bench for their supposed liberal views. The justices were absolutely right to
fight back. Still, the bitter campaigns leave impressions of judicial
partisanship and indebtedness to campaign donors.
Nationally, spending on television advertisements in state supreme court races
reached nearly $28 million by Election Day, exceeding the $24.4 million in 2004,
the previous record for a presidential election year, according to the Brennan
Center for Justice and Justice at Stake, nonpartisan groups working for fair
courts. Groups not connected to candidate campaigns paid for more than half of
the TV ads run, compared with about 30 percent in 2010, making it much harder
for candidates to control their own message.
In Michigan, where three of seven seats on the State Supreme Court were up for
election, records were set for both spending and lack of accountability. The
$3.2 million raised by candidates and reported to the Michigan Bureau of
Elections was dwarfed by unreported spending by the political parties and
outside groups interested in tilting the balance on the court. One ad run by an
independent group against Bridget McCormack, a Democratic candidate for a seat
on the court, featured the mother of a soldier killed in Afghanistan and
suggested that Ms. McCormack’s legal work for a detainee released from
Guantánamo Bay in 2007 showed support for terrorism. Ms. McCormack won the race.
Of the $15 million or so spent for TV ads in Michigan, 75 percent cannot be
attributed to identifiable donors, notes Rich Robinson, executive director of
the Michigan Campaign Finance Network, which advocates changing Michigan law to
bar undisclosed independent spending. That exceeds even the 2010 record, when
half the total spending on Michigan Supreme Court races came from secret
Regrettably, states that elect their top judges show no inclination to address
these distressing trends by replacing judicial elections with systems of merit
appointment that avoid retention votes. This year’s experience should at least
hasten state efforts to revise rules for judicial recusal to take campaign
contributions into account. Mandatory disclosure of all donations to a judicial
race is also essential. Litigants cannot know when they should request that a
judge step aside if they cannot tell whether their case involves a party that
supported the judge’s campaign.
This fall’s round of state judicial elections is setting records of the wrong
kind. Extravagant spending by interest groups out to influence judicial
decisions and snarling television and radio attack ads have long become routine.
This year, the virus has spread to retention elections, in which states ask for
a yes-or-no vote on whether to grant sitting justices another term.
This is especially troubling because retention ballots were supposed to limit
politicization by sparing sitting judges from having to compete in regular
The retention campaign of Justice Thomas Kilbride of the Illinois Supreme Court
(the chief justice as of this week) is a depressing standout. More than $3.1
million has been raised — $2.5 million by the judge’s supporters, and $650,000
by his opponents.
The bulk of the pro-Kilbride war chest comes from plaintiffs’ lawyers, unions
and other interests channeling money through the Illinois Democratic Party,
which has an obvious stake in how the state’s top court comes down in future
legal battles over redistricting.
Chief Justice Kilbride drew the ire of big business and insurance interests this
year after he voted, with the majority, to overturn a state law that capped
damage awards in medical malpractice cases. A political action committee trying
to oust him has gotten $150,000 from the United States Chamber of Commerce,
$180,000 from a group closely aligned with the National Association of
Manufacturers and nearly $90,000 from the American Tort Reform Association.
His opponents’ ads are particularly noxious. Rather than focusing on the
comparatively dry issue of whether the Legislature or juries and judges should
decide negligence awards, they use his procedural rulings in other cases to
portray him — unfairly — as soft on crime. In the ads, actors playing violent
felons describe their atrocious crimes in detail and then say the justice “sided
with us over law enforcement or victims.”
Chief Justice Kilbride is an able jurist, and Illinois voters should retain him.
But the huge amounts of money in this campaign and others around the country are
doing huge damage to the courts’ reputation for impartiality — and underscores
the urgent need for basic reforms. States that hold judicial elections must
adopt public financing as well as strict rules that bar judges from sitting on
cases involving major financial supporters.
Holding elections to fill important state judgeships is one of those ideas
that may sound good in theory but works terribly in practice. As spending in
state judicial races by special interests has vastly escalated in recent years,
so has the threat to public confidence in judicial neutrality that is
fundamental to the justice system.
Now the lavish spending by interest groups and the politicization of state court
judgeships is spreading from races between two or more judicial candidates to
the “retention” ballots that were supposed to shield judges from the
rough-and-tumble of the election cycle.
More than two dozen states are having active judicial elections this fall. A
total of 18 seats are being contested in multicandidate races in 11 states,
while 37 sitting state justices are seeking voter approval in up-or-down
“retention” elections in 15 states.
Between 2000 and 2009, state supreme court candidates collected more than $206
million in donations, more than doubling the record of the previous decade.
States that previously have been home to some of the most expensive and raucous
judicial races — Michigan, Alabama, Ohio and Texas — will again have competitive
contests this fall.
The stage seems set for record-shattering spending wars, dominated by interest
groups bent on influencing judicial decisions and by mud-slinging attack ads
that were once limited to contested campaigns for executive or legislative
offices. In Michigan, where two seats on the closely divided court are being
contested, spending could top $10 million, according to some reform groups.
The exact impact of January’s ruling by the United States Supreme Court allowing
free corporate and union spending in political campaigns, including judicial
races, will not be known for some time. But the notorious ruling seems destined
to further drive up independent expenditures on behalf of judicial candidates
and exacerbate conflicts of interest on the bench.
Perhaps the most troubling new development concerns the so-called retention
elections. To try to insulate judges from electoral pressures, some states ask
voters to cast yes-or-no ballots on whether to grant them another term, in lieu
of having judges face opposing candidates in regular multicandidate contests.
The idea is to give voters a say in choosing judges while making the election as
apolitical as possible. To date, with a few noteworthy exceptions, retention
elections have tended to be less bitter and partisan than contests where two
candidates compete. That is changing.
In Iowa, three Supreme Court justices on the November ballot are the targets of
a well-financed campaign by right-wing interests for voting in a case to allow
same-sex marriage. The aim is to send a chilling message to judges beyond Iowa’s
borders to beware of rendering opinions that some voter blocs might dislike.
In Kansas, anti-abortion activists are trying to defeat a sitting justice. In
Illinois, business interests are campaigning to defeat the chief justice
following a case that removed a cap on malpractice liability. And in Colorado, a
conservative outfit called Clear the Bench Colorado is citing several decisions
to try to rile up voters to oust the full slate of justices up for retention
there. The group’s efforts may be impeded by a new court ruling that requires
the group to register as a campaign committee and abide by certain limits on
In all, the money spent on retention elections this year could surpass the total
for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan
Center for Justice at the New York University Law School.
The nation’s system of justice depends on having judges who are fair-minded,
independent and unafraid to make unpopular decisions. The onslaught coming this
fall will not help.
September 18, 2010
The New York Times
By MONICA DAVEY
ST. LOUIS — When judges here sentence convicted criminals, a new and unusual
variable is available for them to consider: what a given punishment will cost
the State of Missouri.
For someone convicted of endangering the welfare of a child, for instance, a
judge might now learn that a three-year prison sentence would run more than
$37,000 while probation would cost $6,770. A second-degree robber, a judge could
be told, would carry a price tag of less than $9,000 for five years of intensive
probation, but more than $50,000 for a comparable prison sentence and parole
afterward. The bill for a murderer’s 30-year prison term: $504,690.
Legal experts say no other state systematically provides such information to
judges, a practice put into effect here last month by the state’s sentencing
advisory commission, an appointed board that offers guidance on criminal
The practice has touched off a sharp debate. It has been lauded nationally by a
disparate group of defense lawyers and fiscal conservatives, who consider it an
overdue tool that will force judges to ponder alternatives to prison more
But critics — prosecutors especially — dismiss the idea as unseemly. They say
that the cost of punishment is an irrelevant consideration when deciding a
criminal’s fate and that there is a risk of overlooking the larger social costs
“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the
prosecuting attorney for St. Louis County.
The intent behind the cost estimates, he said, is transparent: to pressure
judges, in the face of big bills, into sending fewer people to prison.
“There is no average case,” Mr. McCulloch said. “Every case is an individual
case, and every victim has the right to have each case viewed individually, and
every defendant has that right.”
Supporters, however, say judges would never focus exclusively on the cost of a
sentence or turn their responsibilities of judgment into a numerical equation.
“This is one of a thousand things we look at — about the tip of a dog’s tail,
it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the
13th Judicial Circuit Court and a member of the sentencing commission. “But it
is almost foolish not to look at it. We live in a what’s-it-going-to-cost?
The shift here comes at a dire time for criminal justice budgets around the
country, as states try to navigate conflicting, politically charged demands: to
keep people safe and also cut costs. Michigan has closed prisons. Arizona
considered putting its prison system under private control. California has
searched for ways to shrink its incarcerated population.
Legal scholars predict that policies similar to the one in Missouri — which,
unlike some other measures, might encourage cutting costs before inmates are
already in prison — may soon emerge elsewhere.
Months ago, members of the Missouri Sentencing Advisory Commission, a group of
lawyers, judges and others established by state lawmakers years ago, voted to
begin providing judges with cost information on individual cases.
Judge Michael A. Wolff of the State Supreme Court, chairman of the sentencing
commission, said judges had been asking for such data. By last month, Judge
Wolff said, the computer algorithm was up and running, and the commission made
note of it to the legal community in its August newsletter, “Smart Sentencing.”
The concept is simple: fill in an offender’s conviction code, criminal history
and other background, and the program spits out a range of recommended
sentences, new statistical information about the likelihood that Missouri
criminals with similar profiles (and the sentences they received) might commit
more crimes, and the various options’ price tags.
Judge Wolff said that some judges might never look at the price tags (though
they are available to anyone, and some defense lawyers have begun mentioning
them) and that judges ultimately did whatever they wished (within statutory
limits) on sentences. Missouri’s sentencing commission makes recommendations
only. And as Judge Wolff sees it, sentencing costs would never be a
consideration in the most violent cases, just in circumstances where prison is
not the only obvious answer.
“This is just more information,” Judge Wolff said.
Fewer than half the states have sentencing commissions like Missouri’s. In many
cases, the commissions grew out of concerns, starting in the late 1970s, about
racial and geographic disparities in sentences.
Now, however, the groups find themselves also weighing fiscal issues, like
everyone else. Consider the theme of a meeting of the national association of
sentencing commissions in August: “Sound Sentencing Policy: Balancing Justice
Leaders of several commissions in other states said they had yet to consider a
plan like Missouri’s. Some voiced concern about the ramifications, the
methodology — even the price tag of calculating sentencing price tags.
Lots of states measure the costs of imprisonment and of new criminal laws, but
on a generic scale. Many states, for instance, calculate the average cost of
housing a prisoner, but that is rarely mentioned with down-to-the-dollar figures
for a specific person as a judge picks a sentence.
To some, the concept sounds crass, and carries the prospect of unwanted
consequences. Might a decision between life in prison and a death sentence be
decided some day by price comparison? (Absolutely not, Missouri officials say,
and besides, the computer model does not attempt to compute the cost of capital
punishment.) Could the costs of various sentences become so widely known as to
affect the decisions of jurors?
Numerous legal experts on sentencing issues said Missouri’s new policy made
sense. Economic considerations play roles in all sorts of legal decisions,
Rachel E. Barkow, a law professor at New York University, said, so why not let
judges understand the cost of their choices?
Douglas A. Berman, a law professor at The Ohio State University, said: “One of
the flaws in the operation of our criminal justice system is not only the
failure to be attentive to cost but an arrogance that somehow you can never put
a price on justice. Long missing has been a sober realization that even if we
get significant benefits from incarceration, that comes at a significant cost.”
Others, like Paul Cassell, a law professor at the University of Utah, argue that
Missouri’s plan counts certain costs but fails to measure others — the societal
price, for instance, if someone not incarcerated commits another crime.
“No one can put a price tag on being a victim,” said Scott Burns, executive
director of the National District Attorneys Association.
Still, money worries loom. This year, in an annual address, even the chief
justice of Missouri’s Supreme Court, William Ray Price Jr., warned that the
system would be threatened if budget cuts persisted.
“Perhaps the biggest waste of resources in all of state government is the
over-incarceration of nonviolent offenders and our mishandling of drug and
alcohol offenders,” he said.
Mr. McCulloch, the prosecutor, said the state’s prisons were filled with
anything but harmless people. “You show me the college kid with a perfect record
and a dime bag of weed who has been sent to prison, and I’ll get him out,” he
said. “Find me him.”
When Missouri lawmakers meet next year, Mr. McCulloch says that he expects he
and others may push to abolish the sentencing commission.
Wisconsin voters did something that is routine in the United States but
virtually unknown in the rest of the world: They elected a judge.
The vote came after a bitter $5 million campaign in which a small-town trial
judge with thin credentials ran a television advertisement falsely suggesting
that the only black justice on the state Supreme Court had helped free a black
rapist. The challenger unseated the justice with 51 percent of the vote, and
will join the court in August.
The election was unusually hard-fought, with caustic advertisements on both
sides, many from independent groups.
Contrast that distinctively American method of selecting judges with the path to
the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a
district court, in Toulouse, France. He still recalls the four-day written test
he had to pass in 1984 to enter the 27-month training program at the École
Nationale de la Magistrature, the elite academy in Bordeaux that trains judges
“It gives you nightmares for years afterwards,” Judge Baissus said of the test,
which is open to people who already have a law degree, and the oral examinations
that followed it. In some years, as few as 5 percent of the applicants survive.
“You come out of this completely shattered,” Judge Baissus said.
The question of how best to select judges has baffled lawyers and political
scientists for centuries, but in the United States most states have made their
choice in favor of popular election. The tradition goes back to Jacksonian
populism, and supporters say it has the advantage of making judges accountable
to the will of the people. A judge who makes a series of unpopular decisions can
be challenged in an election and removed from the bench.
“If you want judges to be responsive to public opinion, then having elected
judges is the way to do that,” said Sean Parnell, the president of the Center
for Competitive Politics, an advocacy group that opposes most campaign finance
Nationwide, 87 percent of all state court judges face elections, and 39 states
elect at least some of their judges, according to the National Center for State
In the rest of the world, the usual selection methods emphasize technical skill
and insulate judges from the popular will, tilting in the direction of
independence. The most common methods of judicial selection abroad are
appointment by an executive branch official, which is how federal judges in the
United States are chosen, and a sort of civil service made up of career
Outside of the United States, experts in comparative judicial selection say,
there are only two nations that have judicial elections, and then only in
limited fashion. Smaller Swiss cantons elect judges, and appointed justices on
the Japanese Supreme Court must sometimes face retention elections, though
scholars there say those elections are a formality.
“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme
Court, since retired, said at a 1988 symposium on judicial selection, “American
adherence to judicial elections is as incomprehensible as our rejection of the
Sandra Day O’Connor, the former Supreme Court justice, has condemned the
practice of electing judges.
“No other nation in the world does that,” she said at a conference on judicial
independence at Fordham Law School in April, “because they realize you’re not
going to get fair and impartial judges that way.”
The new justice on the Wisconsin Supreme Court is Michael J. Gableman, who has
been the only judge on the Burnett County Circuit Court in Siren, Wis., a job he
got in 2002 when he was appointed to fill a vacancy by Gov. Scott McCallum, a
The governor, who received two $1,250 campaign contributions from Mr. Gableman,
chose him over the two candidates proposed by his advisory council on judicial
selection. Judge Gableman, a graduate of Hamline University School of Law in St.
Paul, went on to be elected to the circuit court position in 2003.
The much more rigorous French model, in which aspiring judges are subjected to a
battery of tests and years at a special school, has its benefits, said Mitchel
Lasser, a law professor at Cornell and the author of “Judicial Deliberations: A
Comparative Analysis of Judicial Transparency and Legitimacy.”
“You have people who actually know what the hell they’re doing,” Professor
Lasser said. “They’ve spent years in school taking practical and theoretical
courses on how to be a judge. These are professionals.”
“The rest of the world,” he added, “is stunned and amazed at what we do, and
vaguely aghast. They think the idea that judges with absolutely no
judge-specific educational training are running political campaigns is both
insane and characteristically American.”
But some American law professors and political scientists say their counterparts
abroad should not be so quick to dismiss judicial elections.
“I’m not uncritical of the American system, and we obviously have excesses in
terms of politicization and the campaign finance system,” said Prof. David M.
O’Brien, a specialist in judicial politics at the University of Virginia and an
editor of “Judicial Independence in the Age of Democracy: Critical Perspectives
from Around the World.”
“But these other systems are also problematic,” Professor O’Brien continued.
“There’s greater transparency in the American system.” The selection of
appointed judges, he said, can be influenced by political considerations and
cronyism that are hidden from public view.
A working paper from the University of Chicago Law School last year tried to
quantify the relative quality of elected and appointed judges in state high
courts in the United States. It found that elected judges wrote more opinions,
while appointed judges wrote opinions of higher quality.
“A simple explanation for our results,” wrote the paper’s authors — Stephen J.
Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract
and reward politically savvy people, while appointed judgeships attract more
professionally able people. However, the politically savvy people might give the
public what it wants — adequate rather than great opinions, in greater
Herbert M. Kritzer, who was until recently a professor of law and political
science at the University of Wisconsin, said judicial elections had deep roots
in the state and the nation.
“It’s a remnant of the populist Jacksonian image of public office,” he said.
“We’re crazy about elections. The number of different offices we elect is
There is reason to think, though, that the idea of popular control of the
government associated with President Andrew Jackson is an illusion when it comes
to judges. Some political scientists say voters do not have anything near enough
information to make sensible choices, in part because most judicial races rarely
receive news coverage. When voters do have information, these experts say, it is
often from sensational or misleading television advertisements.
“You don’t get popular control out of this,” said Steven E. Schier, a professor
of political science at Carleton College in Minnesota. “When you vote with no
information, you get the illusion of control. The overwhelming norm is no to low
Still, judges often alter their behavior as elections approach. A study in
Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges,
even the most punitive, increase their sentences as re-election nears,”
resulting in some 2,700 years of additional prison time, or 6 percent of total
prison time, in aggravated assault, rape and robbery sentences over a 10-year
In common law countries, judges are generally appointed by executive branch
officials, though lately judicial commissions made up of lawyers and lay people
are taking a larger role in the initial selection of candidates. Scotland
adopted that method in 2002, and England and Wales in 2006.
Alan Paterson, a Scottish law professor who serves on the Judicial Appointments
Board for Scotland, said his country’s system was transparent and worked well,
though he acknowledged that the idea behind judicial elections was attractive.
“Part of me likes it,” he said. “It follows from the separation of powers. But
in practical terms, it’s very difficult. They have to raise a lot of money.”
“The theory is a nice theory,” he said. “The practice of it is unworkable. We’re
not going to do it.”
In some nations, of course, the judiciary is neither independent nor accountable
to the public.
“Take a country like Vietnam,” Professor O’Brien said. “Those poor judges are
controlled by party officials even at the trial level. That’s even worse than we
have in Pennsylvania, Ohio and Texas, where the cost of judicial campaigns has
just escalated over the last couple of decades.”
Judge Gableman did not respond to phone messages seeking comment. In answer to a
question about his qualifications in an online forum on The Milwaukee Journal
Sentinel’s Web site, he acknowledged that he had no appellate court experience
but said he had argued a case, concerning zoning, before the state Supreme
In the recent election, Judge Gableman’s campaign ran a television advertisement
juxtaposing the images of his opponent, Justice Louis B. Butler Jr., in judicial
robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year-old
girl. Both the judge and the rapist are black.
“Butler found a loophole,” the advertisement said. “Mitchell went on to molest
another child. Can Wisconsin families feel safe with Louis Butler on the Supreme
Justice Butler had represented Mr. Mitchell as a lawyer 20 years before and had
persuaded two appeals courts that his rape trial had been flawed. But the state
Supreme Court ruled that the error was harmless, and it did not release the
defendant, as the advertisement implied. Instead, Mr. Mitchell served out his
full term and only then went on to commit another crime.
In an interview, Justice Butler — a graduate of the University of Wisconsin law
school who served for 12 years as a judge in Milwaukee courts — said the past
few months had tested his commitment to elections.
“My position historically has been that there is something to be said for the
public to be selecting people who are going to be making decisions about their
futures,” Justice Butler said.
“But people ought to be looking at judges’ ability to analyze and interpret the
law, their legal training, their experience level and, most importantly, their
impartiality,” he continued. “They should not be making decisions based on ads
filled with lies, deception, falsehood and race-baiting. The system is broken,
and that robs the public of their right to be informed.”
Judge Baissus, the French judge, said his nation had once considered electing
“It’s an argument that was largely debated after the French revolution,” he
said. “It was thought not to be a good idea. People seeking re-election would
not be independent. They are indeed close to the electorate, but sometimes