With election season ramping up to its climax, a lot of attention has been paid to whether or not the Republicans will take the Senate and control all of Congress. But, with less of a spotlight trained on them, local-level decisions are being made across he country—and a new study has found that attack ads during judicial elections are changing more than the outcome of the vote.
In fact, according to the independent scientists at the Emory University school of law, running attack ads that claim a candidate is “soft on crime” will make the judges less likely to rule in favor of criminal defendants. In association with the American Constitution Study, authors Joanna Shepherd and Michael S. Kang found two big takeaways in their study, titled “Skewed Justice:”
The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.
Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.
The study brings up long-running issues with the judicial election process. With the executive and legislative branches of our government more log-jammed than ever, there’s an increasing burden of decision-making falling on judicial branches. It’s hard to fault judges acting like politicians, since anyone who is running in an election will have to engage like a poltician. But how comfortable can voters be if judicial decisions are being made with the ballot box in mind?
It’s an issue Philip Thomas, of the MS Litigation Review has been writing about for years. He believes the solution is to do away with the election system entirely, given that for all their importance, most people couldn’t identify their state’s supreme court judges. In blog post from September 2013 he writes:
As an experiment, I asked my legal assistant–who has been working in the industry for years–if she could name any Mississippi Supreme Court Justices. She couldn’t.
What percentage of non-attorney people in Mississippi could name a single Supreme Court Justice? I’m guessing it’s less than 5%. How would you feel about this if you were on the Mississippi Supreme Court? Vulnerable in every election cycle to a well funded opponent?
My point is I don’t want a Supreme Court Justice to have to feel anything about this. We need an appointed system that removes the issue from the equation.
Perhaps the answer is to follow Florida’s example, a system that balances political appointments with the judgement of voters. As Dan Bushell writes in 2012 on the Florida Appellate Review, the methods—which allow voters to host retention elections after the appointee has served for a while—gives Florida the best way to ensure informed voters and partisan-free judges.
Selecting and retaining judges and justices on the basis of merit is the best way to build a smart, well-qualified judiciary. Selecting and retaining judges and justices without consideration of political parties or interests is the best way to build a fair judiciary.
And it is the best way to ensure that judges and justices are free to decide cases independently, without fear of retribution from powerful politicians. It seems to me that the organized opposition to retention this year boils down to that: some powerful politicians didn’t like certain [Florida] Supreme Court rulings against them. They’d rather have their own people on the court.
Florida used to have partisan judicial elections. It didn’t work well, elevating political savvy over impartiality and merit. When enough scandals resulted, our electorate opted for a non-partisan/non-political system. It works well.
Rebecca Love Kourlis, executive director of the Institute for Advancement of the American Legal Systems (IAALS) agreed, in an interview with LXBN at the beginning of the year. Citing low voter turnout and judges often running unopposed, Kourlis raises serious doubts about the judicial election process:
In a statistic that I find the most powerful of all, ¼ of judges admit that they fear their decision making is influenced in some way by partisan, political race, or by specifically fundraising…People think the right way for [accountability and impartiality] is elections, but point in fact they don’t always provide the accountability you might anticipate.
Though the amount of money spent in a judicial election is nowhere near congressional races, the price of a seat has steadily increased over the past few decades. Additionally, there’s a bigger interest on return: Mother Jones’ cover story details how in 2004 the CEO of Massey Energy spent $3 million on his preferred Supreme Court electorate. When that judge later cast the decisive vote to overturn a $50 million verdict against the company it marked an almost 1,600 percent return on his investment.
And even more seriously, NPR has found that one-fifth of the prisoners on death row in Alabama are there as a result of judicial override, a process where a judge can override a jury’s decision and sentence criminals to death—a practice only allowed in two other states, with Florida and Delaware being the others. Alabama, however, is the only one of the trio without a merit-based judicial selection process and, given the numbers—and that 40 of their current death row inmates were sentenced against the judgement of the jury—it makes you wonder what role the state’s partisan judicial election process is in all of this. As Rebecca Buckwalter-Poza wrote for NPR:
The Equal Justice Initiative asserts that “the proportion of death sentences imposed by override often is elevated in election years.” For instance, while judicial overrides accounted for 7 percent of death sentences in the nonelection year of 1997, in the election year of 2008, they accounted for 30 percent. And a number of elected judges have featured their death penalty records in campaign commercials.
While highlighting this as a life and death matter takes the problems with judicial elections to a new and dangerous level, you have to wonder if what we’re seeing is only an example of what will soon become politics as usual in the United States. After all, there’s only been one presidential cycle since Citizen’s United.