Many Americans believe that justice is for sale—that judges, and their rulings, can be bought by special interests. It's a cynical view of the American judiciary, sure. But according to statistics compiled by Justice at Stake (JAS), a nonpartisan organization that works toward fair and impartial courts, there's good reason to worry.
Consider the JAS finding that 76 percent of American voters believe campaign contributions affect a judge's courtroom decisions. Pair that with skyrocketing campaign spending in state high court elections, which has increased in the last decade from $83 million to $207 million—40 percent of which derives from just ten sources—and you get the picture.
"This tends to be an issue that, when you talk to most people about it, they understand its importance but it's not a deeply felt issue," says Debra Erenberg (MPP '89), state affairs director for Justice at Stake since August 2012. "So there is a fair amount of education necessary to get people to contact a legislator or take other steps."
Debra, who is also a lawyer, has spent her entire career doing social justice work. Like many Ford School graduates, she cites courses on cost-benefit analysis and poverty and inequality taught by Paul Courant and Sheldon Danziger, respectively, as having been extremely useful in her early thinking on these issues. JAS, she says, is a natural progression because "women's rights, human rights—they all rely on having fair and impartial courts." She works directly with advocates at the state level to provide support with lobbying, developing grassroots strategies, and figuring out how to message and educate the public around issues of judicial fairness.
Campaign finance and the power of special interests
Much of the money in judicial campaigns comes from lawyers who will likely argue cases in front of the very judge they helped elect. Business interests are another key source of funding—so much so that watchdogs refer to parts of southern Illinois as the "asbestos circuit" because of the number of large judgments in favor of plaintiffs. "That's become an arms race in terms of campaign fundraising," Debra observes, "between trial attorneys who want to keep judges who will give them better judgments and business groups and corporations who want to bring in more conservative, business-minded judges."
She adds that Michigan high court elections spend a lot of money on TV attack ads, a fact concurred by the nonpartisan, nonprofit Michigan Campaign Finance Network (MCFN), a JAS partner that conducts research on money in Michigan politics. In an op-ed for the Detroit Free Press, executive director Rich Robinson (MPP '82) writes that the 2012 Michigan Supreme Court Campaign "appears to have been the most expensive, least accountable judicial election campaign in America."
MCFN found that less than $4 million of $15 million in documented spending last year by judicial candidates' committees can be traced back to identifiable donors. The remainder of the funds—$11 million in TV ads sponsored by "state political parties and a DC-based nonprofit 'social welfare' corporation called Judicial Crisis Network"—cannot.
"The reason this matters," Robinson writes, "is that unaccountable spending undermines the presumption of impartial justice."
Debra notes that—increasingly since Citizens United — "judicial races are seeing the same phenomenon as other political campaigns, where independent expenditures often dwarf anything the candidates themselves are spending.
"That money is largely unregulated, undisclosed, and very difficult to manage—which is one of the reasons JAS is working to move states away from electing judges directly and toward a merit-based selection of judges." Twenty-four states have some form of merit-based judge selection, in which a nominating commission, comprising lawyers and others, puts potential judges through an interview-like process and recommends a handful of the most qualified contenders to the governor. In turn, the governor makes the final judicial appointments.
Toward a more diverse judiciary
Such processes are meant to reinvest American courts with a sense of justice and equality—qualities that may not be immediately evident to the average American.
There are many ways the courts could potentially be unfair, and the infusion of special interest dollars into judicial elections is only one of them. Racial discrimination is another. Recalling a quote by Justice Sotomayor, Debra says that people bring their life experiences to their judgment. One recent JAS initiative seeks to diversify the judiciary. The program works with minority bar associations and other groups to build a pipeline of information and mentors, to get students of color thinking early in their education and careers about what it takes to become a law clerk, a lawyer, a judge.
The initiative has already begun to bear fruit; three early participants were elected to the bench in Washington State.
"People of color tend to have a greater distrust of the courts than others. This makes sense because there are so many barriers to even getting your day in court, let alone to being fairly treated once you get there," Debra says. "Now that JAS is taking up funding issues and access to justice, we hope we'll have an impact on people's ability to get a fair day in court."