Despite concerns over impartiality and fairness, many states continue to elect judges to the bench, including to their highest courts. Although politics and public opinion influence judges who are appointed, rather than elected (a lot of empirical research supports this claim), selecting judges by elections probably does even more damage to judicial independence.
Campaigns for judgeships can become as vicious as those for political office. FactCheck.Org has released a summary of court races in several states this year that have involved some very "interesting" campaigns advertisements. These commercials highlight the ethical concerns related to judicial elections. Here are some highlights from the FactCheck memorandum.
* In Mississippi, an out-of-state group funded a commercial which claimed that Supreme Court Justice Oliver Diaz, Jr., who was up for re-election, "voted for" a child murderer and rapist. This advertisement is quite inflammatory. First it describes deciding a case against the state as "voting for" the defendant. Second, the commercial seeks to demonize the judge for vigorously supporting due process rights (whether or not he was "wrong" in his interpretation of precedent) by exploiting negative public opinion of sex offenders and murderers.
In the case at issue, Diaz dissented after a majority of the court refused to allow the defendant a hearing to present DNA evidence that could prove his innocence. The number of DNA acquittals for convicted individuals continues to rise. Nevertheless, the commercial disparages the judge for seeking to protect the due process rights of the defendant in this situation. The Bill of Rights, however, does not contain exceptions for the class of crimes commited.
The commercial also accuses Diaz of supporting a second child killer. Diaz dissented in a case in which the majority refused to issue a stay of execution for a man convicted of murdering a child. Diaz argued that Mississippi should delay execution until after the U.S. Supreme Court decided a then-pending case on the constitutionality of executions by lethal injunction (which Mississippi uses). Although lower courts frequently delay cases that implicate matters under review in appeals courts -- especially when, as here, a "wrong" decision would be fatal and irreversible, the commercial turned this standard process into something ominous.
A judicial ethics committee denounced the advertisement in pretty strong language. Here's an excerpt: "A judge is sworn to uphold the law and adjudicate cases in accordance with law, and not ignore the law based upon the popularity or infamy of those who appear before the court or the heinousness of the crime of which they are accused." These are forceful words, but the situation raises serious questions about the appropriateness of judicial elections.
* Moving north to the blue-state of Michigan, the Democratic Party ran a commercial accusing Chief Justice Cliff Taylor, a Republican judge and candidate for re-election, of sleeping during an oral argument. In the case at issue, the plaintiff sued the City of Detroit and public housing officials claiming that they were liable for a fire in her apartment that killed six children (sad that the commercials use kids as political footballs). In a 4-3 ruling the Michigan Supreme Court dismissed the lawsuit on the grounds that the defendants were immune from liability. Taylor sided with the majority.
An unnamed woman in the commercial says she witnessed Taylor sleeping during the proceeding. News accounts report that plaintiff is the speaker. Her accusation against the judge, however, never emerged until the eve of the election, even though the alleged "siesta" took place one year prior to the campaign advertisement. Also, other witnesses dispute her account. Taylor lost his re-election bid, and many observers believe the commercial probably played a decisive role.
Editors note on the sleeping-judge advertisement: I really hate saying this (because people could distort my words), but oral arguments on appeals of purely legal issues are not ordinarily helpful to judges. Once the issue gets to the appeals court, it has been subject to legal briefing (often more than once), and the lower court might have issued a written ruling on the issue which the appeals court could use as precedent. Consequently, many judges report that oral arguments rarely affect the way they decide legal issues. Some courts in fact only host oral arguments at their own convenience, not at the request of the parties.
I am not condoning sleeping judges, but if the proceeding does not require the court to take evidence or ascertain the credibility of testimony, then it is less critical to the outcome of the case. All of this is to say that not only was the factual assertion in the commercial questionable in terms of its credibility, but the issue of dozing off at an oral argument does not necessarily make the judge unfit. It is more embarrassing than anything else.
Overall comment: Clearly these disputes centered around ideology. Conservatives hated the "liberal" rulings of the Mississippi judge, while Liberals despised the jurisprudence of the Michigan Republican judge. And while politicians also debate ideology when considering whether to approve Judaical nominees, this type of discussion in the context of a state-wide election risks unfairly swaying public opinion. A specialized field of legal ethics examines and monitors judicial elections. The type of sleazy material in these settings make the 3am commercial look like a tap on the wrist.
Related Reading on Dissenting Justice: Buying "Justice": Campaign Finance and Judicial Elections.