Tomorrow the U.S. Supreme Court will hold a hearing on whether the bans on candidates for judicial office in 30 states directly soliciting contributions violate the First Amendment. The New York Times this morning put the story on the front page and ran an editorial on the subject.
Judges are elected, in one way or another, in 39 of the 50 states. In some states all judges are elected, in others only some are elected and others appointed. Some are elected in partisan elections, some are appointed but then face a retention election. You can see the particulars here.
The reasoning behind the bans is that if a judge or a candidate for a judgeship personally asks for a contribution, especially from lawyers or companies that might have a case before him, that sets up a quid that might at some future date produce a quo.
This is not just theoretical. As the Times reports:
In the 1970s, two justices of the Florida Supreme Court resigned after evidence emerged that they had tried to fix cases for contributors. A third stepped down when a gambling junket paid for by a litigant came to light. A fourth left the court in connection with a scandal including draft opinions ghostwritten by lobbyists.
But banning direct solicitations simply puts the problem at one remove. Instead of the judge asking for a contribution, his campaign manager (or his wife) asks for it. The quid and the potential quo are still there.
The problem is in electing judges, a practice unknown outside the United States. It dates to the 1830s with the flowering of “Jacksonian democracy.” Andrew Jackson was a fierce anti-aristocrat and thought that one of the ways to dilute the power of the elite was for all public officials to be elected, including judges. The thoroughly Jacksonian New York State constitution of 1846 required the election of almost all public officials, from town clerks and receivers of taxes to the head of the prison system.
But town clerks and receivers of taxes are, well, clerks. They have important and responsible jobs but they don’t make policy; they execute it and should be responsible to the executive, not the electorate. The same is true of judges. They can’t promise to do this or that or the other thing if elected, they can only promise to be fair and impartial and to follow the law.
Federal judges are nominated by the president, confirmed by the Senate, and have life tenure. They can only be removed by impeachment. But in the whole history of the federal judiciary only eight judges have been impeached, convicted, and removed from office while another three resigned in the face of impeachment. That’s not a perfect record, to be sure, but it’s an impressive one, and far better than that of judges elected to office.