JUSTICE FOR HIRE...Library of Congress Cataloging-in-Publication Data Justice for hire : a statement on national policy by the Research and Policy Committee of the Committee for Economic

JUSTICE FOR HIREImproving Judicial Selection

A Statement by the Research and Policy Committee of the Committee for Economic Development

A SHARED FUTUREREDUCING GLOBAL POVERTY

A Statement by the Research and Policy Committeeof the Committee for Economic Development

JUSTICE FOR HIREImproving Judicial Selection

A Statement by the Research and Policy Committee of the Committee for Economic Development

Library of Congress Cataloging-in-Publication Data

Justice for hire : a statement on national policy by the Research and Policy Committee ofthe Committee for Economic Development.

p. cm.ISBN 0-87186-146-1 1. Judges—Selection and appointment—United States. I. Committee for Economic

Development. Research and Policy Committee.

KF8776.J87 2002347.73'14—dc21

2002073639

First printing in bound-book form: 2002Paperback: $15.00Printed in the United States of AmericaDesign: Rowe Design Group

COMMITTEE FOR ECONOMIC DEVELOPMENT261 Madison Avenue, New York, N.Y. 10016(212) 688-2063

2000 L Street, N.W., Suite 700, Washington, D.C. 20036(202) 296-5860

www.ced.org

iii

CONTENTS

RESPONSIBILITY FOR CED STATEMENTS ON NATIONAL POLICY iv

PURPOSE OF THIS STATEMENT vii

CHAPTER 1: INTRODUCTION AND EXECUTIVE SUMMARY 1Summary of Recommendations 4

Appointment-based Selection 4Improving Judicial Elections 5

CHAPTER 2: STATE JUDICIAL SELECTION SYSTEMS: AN OVERVIEW 8The Changing Character of Judicial Elections 10

The Old Style of Judicial Campaigns 10The New Style of Judicial Campaigns 11

Increased Competition 12Rising Expenditures 13Sources of Contributions: The Role of Lawyers 16The Expanding Role of Interest Groups 17

Summary 20The Effects of Judicial Elections 20

Effects on Judicial Behavior 22Effects on Public Perceptions 23

CHAPTER 3: IMPROVING JUDICIAL ELECTIONS 25End Partisan Elections and Lengthen Terms of Office 25Elections Should Be Publicly Funded 26Improving Disclosure of Issue Advocacy Campaigns 29Establish Judicial Retention Evaluation Programs and Publish Voter Guides 30Conclusion 32

CHAPTER 4: IMPROVING JUDICIAL SELECTION: A CALL FORCOMMISSION-BASED APPOINTMENT 33

Establish Judicial Nominating Commissions 34Require Periodic Review and Evaluation 35Ensure Adequate Compensation 36

Merit Selection as an Alternative 37Conclusion 38

ENDNOTES 40

APPENDIX 43

MEMORANDUM OF COMMENT, RESERVATION, OR DISSENT 52

OBJECTIVES OF THE COMMITTEE FOR ECONOMIC DEVELOPMENT 53

The Committee for Economic Develop-ment is an independent research and policyorganization of some 250 business leadersand educators. CED is nonprofit, nonparti-san, and nonpolitical. Its purpose is to pro-pose policies that bring about steady eco-nomic growth at high employment andreasonably stable prices, increased productiv-ity and living standards, greater and moreequal opportunity for every citizen, and animproved quality of life for all.

All CED policy recommendations musthave the approval of trustees on the Researchand Policy Committee. This committee is di-rected under the bylaws, which emphasizethat “all research is to be thoroughly objec-tive in character, and the approach in eachinstance is to be from the standpoint of thegeneral welfare and not from that of anyspecial political or economic group.” Thecommittee is aided by a Research AdvisoryBoard of leading social scientists and by asmall permanent professional staff.

The Research and Policy Committee doesnot attempt to pass judgment on any pend-

ing specific legislative proposals; its purpose isto urge careful consideration of the objectivesset forth in this statement and of the best meansof accomplishing those objectives.

Each statement is preceded by extensivediscussions, meetings, and exchange of memo-randa. The research is undertaken by a sub-committee, assisted by advisors chosen for theircompetence in the field under study.

The full Research and Policy Committeeparticipates in the drafting of recommenda-tions. Likewise, the trustees on the draftingsubcommittee vote to approve or disapprove apolicy statement, and they share with theResearch and Policy Committee the privilegeof submitting individual comments for publi-cation.

The recommendations presented herein arethose of the trustee members of the Research andPolicy Committee and the responsible subcom-mittee. They are not necessarily endorsed by othertrustees or by nontrustee subcommittee members,advisors, contributors, staff members, or othersassociated with CED.

RESPONSIBILITY FOR CED STATEMENTS ON NATIONAL POLICY

iv

RESEARCH AND POLICY COMMITTEE

Co-ChairmenPATRICK W. GROSSFounder and Chairman, Executive

CommitteeAmerican Management Systems, Inc.BRUCE K. MACLAURYPresident EmeritusThe Brookings Institution

Vice ChairmenIAN ARNOFRetired ChairmanBank One, Louisiana, N.A.CLIFTON R. WHARTON, JR.Former Chairman and Chief Executive

OfficerTIAA-CREF

REX D. ADAMSProfessor of Business AdministrationThe Fuqua School of BusinessDuke UniversityALAN BELZERRetired President and Chief Operating

OfficerAlliedSignal Inc.PETER A. BENOLIELChairman, Executive CommitteeQuaker Chemical CorporationFLETCHER L. BYROMPresident and Chief Executive OfficerMICASU CorporationDONALD R. CALDWELLChairman and Chief Executive OfficerCross Atlantic Capital PartnersJOHN B. CAVEPrincipalAvenir Group, Inc.CAROLYN CHINChairmanCommtouch/C3 PartnersA. W. CLAUSENRetired Chairman and Chief Executive

OfficerBankAmerica CorporationJOHN L. CLENDENINRetired ChairmanBellSouth CorporationGEORGE H. CONRADESChairman and Chief Executive OfficerAkamai Technologies, Inc.

RONALD R. DAVENPORTChairman of the BoardSheridan Broadcasting CorporationJOHN DIEBOLDChairmanJohn Diebold IncorporatedFRANK P. DOYLERetired Executive Vice PresidentGET.J. DERMOT DUNPHYChairmanKildare Enterprises, LLCCHRISTOPHER D. EARLManaging DirectorPerseus Capital, LLCW. D. EBERLEChairmanManchester Associates, Ltd.EDMUND B. FITZGERALDManaging DirectorWoodmont AssociatesHARRY L. FREEMANChairThe Mark Twain InstituteRAYMOND V. GILMARTINChairman, President and Chief Executive

OfficerMerck & Co., Inc.BARBARA B. GROGANPresidentWestern Industrial ContractorsRICHARD W. HANSELMANChairmanHealth Net Inc.RODERICK M. HILLSChairmanHills Enterprises, Ltd.MATINA S. HORNERExecutive Vice PresidentTIAA-CREFH.V. JONESManaging DirectorKorn/Ferry InternationalEDWARD A. KANGASChairman and Chief Executive

Officer (retired)Deloitte Touche TohmatsuJOSEPH E. KASPUTYSChairman, President and Chief

Executive OfficerGlobal Insight, Inc.CHARLES E.M. KOLBPresidentCommittee for Economic Development

CHARLES R. LEEChairmanVerizon CommunicationsALONZO L. MCDONALDChairman and Chief Executive OfficerAvenir Group, Inc.NICHOLAS G. MOOREChairman EmeritusPricewaterhouseCoopersSTEFFEN E. PALKOVice Chairman and PresidentXTO Energy Inc.CAROL J. PARRYPresidentCorporate Social Responsibility

AssociatesVICTOR A. PELSONSenior AdvisorUBS Warburg LLCPETER G. PETERSONChairmanThe Blackstone GroupNED REGANPresidentBaruch CollegeJAMES Q. RIORDANChairmanQuentin Partners Co.LANDON H. ROWLANDChairman, President and Chief Executive

OfficerStilwell Financial Inc.GEORGE RUPPPresidentInternational Rescue CommitteeROCCO C. SICILIANOBeverly Hills, CaliforniaMATTHEW J. STOVERPresidentLKM VenturesARNOLD R. WEBERPresident EmeritusNorthwestern UniversityJOSH S. WESTONHonorary ChairmanAutomatic Data Processing, Inc.DOLORES D. WHARTONFormer Chairman and Chief

Executive OfficerThe Fund for Corporate Initiatives, Inc.MARTIN B. ZIMMERMANVice President, Governmental AffairsFord Motor Company

v

*Voted to approve the policy statement but submitted memorandum of comment, reservation, or dissent. See page 52.†Disapproved publication of this statement.

*

†

SUBCOMMITTEE ON JUDICIAL SELECTION

Co-Chairs

DEREK BOKPresident EmeritusHarvard UniversityNational Chair, Common CauseRODERICK M. HILLSChairmanHills Enterprises, Ltd.

Trustees

ALAN BELZERRetired President and Chief Operating OfficerAlliedSignal, Inc.PETER BENOLIELChairman, Executive CommitteeQuaker Chemical CorporationWILLIAM H. DONALDSONChairmanDonaldson EnterpriseWILLIAM F. HECHTChairman, President and Chief Executive OfficerPPL CorporationLEON C. HOLTRetired Vice ChairmanAir Products and Chemicals, Inc.PHILIP K. HOWARDVice ChairmanCovington & BurlingL. OAKLEY JOHNSONSenior Vice President, Corporate AffairsAmerican International GroupW. MARK LANIERPresidentThe Lanier Law Firm, PCRONALD L. OLSONPartnerMunger, Tolles & Olson, LLPNED REGANPresidentBaruch College

E. B. ROBINSON, JR.Chairman EmeritusDeposit Guaranty CorporationDANIEL ROSEChairmanRose AssociatesHOWARD M. ROSENKRANTZChief Executive OfficerGrey Flannel AuctionsROCCO C. SICILIANOBeverly Hills, CaliforniaSTEPHEN STAMASChairmanThe American AssemblyJAMES A. THOMSONPresident and Chief Executive OfficerRANDJOSH S. WESTONHonorary ChairmanAutomatic Data Processing, Inc.

Ex-Officio Members

ROY J. BOSTOCKChairman, Executive CommitteeBcom3 Group, Inc.PATRICK W. GROSSFounder and Chairman, Executive CommitteeAmerican Management Systems, Inc.CHARLES E.M. KOLBPresidentCommittee for Economic DevelopmentBRUCE K. MACLAURYPresident EmeritusThe Brookings Institution

Non-Trustee Members

THE HONORABLE ALLAN VANGESTELJusticeMassachusetts Superior CourtTHE HONORABLE JOSEPH H.YOUNGSenior United States District JudgeUnited States District Court

vi

Guests

LUKE BIERMANDirectorAmerican Bar Association Justice CenterED DAVISDirector of State OrganizationsCommon CauseEILEEN C. GALLAGHERAssociate DirectorOffice of Justice InitiativesAmerican Bar AssociationLAURENCE N. HANSENVice PresidentThe Joyce FoundationSCOTT HARSHBARGERPresident and Chief Executive OfficerCommon CauseJOHN KOWALAssociate DirectorProgram on Law and SocietyOpen Society InstituteTHE HONORABLE GERI PALASTExecutive DirectorJustice At Stake Campaign

Advisor

JOHN HOFFDeputy Assistant SecretaryDepartment of Health and Human Services

Project Director

ANTHONY CORRADOProfessor of GovernmentColby College

Project Associates

SPENCER HUTCHINSInternCommittee for Economic DevelopmentJEFF LOESELResearch AssociateCommittee for Economic Development

vii

The independence of the judicial systemis an essential component of a functioningdemocracy. But the explosion of interest in,and financial contributions to, judicial cam-paigns raises concerns. When candidates forjudicial office are forced to raise funds andaccept donations from law firms or specialinterest groups that might someday appearbefore them, their impartiality is broughtinto question. Even those judges who simplyconfront retention elections face increasedpressure to rule in certain ways around elec-tion time, for fear of a possible backlash atthe ballot box. In a system based on the ruleof law, these variances are unacceptable.

Justice for Hire: Improving Judicial Selectionbuilds on previous CED research on main-taining and improving democratic institu-tions in the United States. In 1999, CED pub-lished Investing in the People’s Business: ABusiness Proposal for Campaign Finance Reform.Investing in the People’s Business took a hardlook at the problems of soft money and theincreasing influence of special interestgroups in campaign financing. One of CED’smost influential papers to date, a number ofrecommendations from this paper were in-corporated into the reforms signed into lawin early 2002. CED also addressed the issueof the increasingly litigious nature of oursociety in Breaking the Litigation Habit:Economic Incentives for Legal Reform (2000).

ACKNOWLEDGMENTSWe would like to thank the dedicated

group of CED Trustees, non-Trustee mem-bers, special guests, and advisors who com-prised CED’s Subcommittee on Judicial Se-lection (see page vi). Special thanks go tothe subcommittee’s co-chairs, Derek Bok,President Emeritus, Harvard University andNational Chair, Common Cause, andRoderick M. Hills, Chairman of Hills Enter-prises, Ltd., for their leadership and guid-ance. We are also grateful to Project DirectorAnthony Corrado of Colby College, JohnHoff, Deputy Assistant Secretary, Depart-ment of Health and Human Services, CEDSenior Vice President and Director ofResearch, Everett Ehrlich, and CED SeniorFellow Van Doorn Ooms for their contribu-tions, and to CED Research AssociatesSpencer Hutchins and Jeff Loesel for theirassistance.

Patrick W. Gross, Co-ChairResearch and Policy CommitteeFounder and Chairman, Executive CommitteeAmerican Management Systems, Inc.

Bruce K. MacLaury, Co-ChairResearch and Policy CommitteePresident EmeritusThe Brookings Institution

Purpose of This Statement

An independent and impartial judiciary isa cornerstone of our system of governance.Our society is based on the rule of law, on theidea that laws, democratically enacted, are thesupreme governing authority. Judges serve asthe guardians of the law. Their role is touphold the law and maintain the standardsneeded for a properly functioning, credible,and impartial system of justice. They sustainthe vitality and legitimacy of the rule of law bygiving it practical application, and we rely onthe exercise of their judgment and discretionto give shape to what is at times an indetermi-nate body of law. This judicial role is best ful-filled by individuals who are responsible onlyto the law and whose decisions are freed fromthe influence of public opinion and politicalpressures.

Our adversarial legal system is predicatedon the idea that judges will serve as neutraland dispassionate arbiters and administrators.Litigants depend on a judge’s impartiality tosecure due process and gain a fair hearing:judges must treat all those who come beforethem similarly and must render impartial deci-sions based solely on the facts of the matterbefore them. This is the only way to guaranteethat each case is decided through a principleddeliberation with no predisposition as to thecorrect legal outcome. Such independent andimpartial exercise of judicial authority is anessential aspect of a free society, since it pro-motes respect for the law and thereby inspiresvoluntary compliance with legal norms.

The methods of judicial selection used inmost states fail to live up to this conception of the judiciary. Instead of safeguarding judges

from political pressures, most selection sys-tems invite such influence by requiring judgesto gain or retain office through popular elec-tion. There are more than 30,000 judges inthe 50 states, including more than 1,300 stateappellate judges, 11,000 state trial judges, andalmost 18,000 limited-jurisdiction judges. Over87 percent of these judges must face the vot-ers at regular intervals in some type of popularelection.1 Thirty-nine states currently requireelections for those seeking or holding judicialoffice at some level.2 In all, 53 percent ofappellate judges and 77 percent of trial judgesare selected in contestable elections.3 Takentogether, the number of elected judges nowvastly exceeds the number of elected state legislators and executive officers throughoutthe country.4

While the federal system of judicial selec-tion has encouraged a popular image of justices as appointed officials with life tenure,the reality in most courtrooms throughout the nation is just the opposite. More oftenthan not, those who serve on the highest statecourts and those who preside daily over mat-ters of criminal, civil, and family law wereplaced in office, or remain in office, due to adecision made by voters. The selection meth-ods vary widely, with some states choosing allor most of their appellate and trial jurisdictionjudges in nonpartisan contests, while othershold partisan contests where the candidatesstand for election on a party ticket. Electionshave also become common in many states that employ “merit selection” systems, whichwere originally designed to respond to theproblems posed by judicial election. In these

1

Chapter 1

Introduction andExecutive Summary

merit systems, a candidate is initially appoint-ed to office and then required to stand forelection after a specified term in order toretain office. These retention elections do notrequire a judge to face an opponent; instead,voters are asked to vote “yes” or “no” on thequestion of whether that judge should be keptto serve another term. Only 11 states selectjudges through appointive processes or meritsystems without elections.5

The need for judges to appeal to votersand seek campaign contributions to financetheir quests for office is antithetical to theideal of an independent and impartial judicia-ry. Unlike governors, legislators, or even citycouncilors, judges are not supposed to repre-sent a particular constituency, appeal to amajority, or even reflect the will of the people.Yet the desire to be elected or reelected maylead a judge to consider public attitudes orthe electoral consequences of a decision inrendering a judgment. At a minimum, selec-tion by election enhances the potential influ-ence of political considerations on judicialbehavior and increases the prospect of a politi-cization of the courts, since any decision ajudge makes may be made into a campaignissue by an opponent or interest group in thenext election. This is especially true in parti-san contests, where an elected judge may beperceived by members of the electorate as anadherent to a particular policy view or politicalperspective.

The need to solicit campaign contribu-tions poses an even greater threat to the inde-pendence and legitimacy of the judiciary. Thenecessity of raising money for a political campaign encourages judicial candidates toengage in an activity that does not befit thedecorum of the office and is not conducive to the building of public trust in the judicialprocess. Accepting campaign money can cre-ate the appearance of obligation to those whofinancially supported a judge’s bid for office.In the worst case, it may subject a judge tooutside influence and affect a ruling or lead a litigant to conclude that a donor received

preferential treatment. Any process thatselects judges by election jeopardizes publicconfidence in the judicial process. The needto raise money for election campaigns severe-ly exacerbates this problem.

The problems inherent in judicial elec-tions have become especially acute in the pasttwo decades. The character of judicial con-tests in a growing number of states haschanged dramatically. While most judicialelections continue to conform to the tradi-tional pattern of low-cost, civil affairs, with rel-atively low voter interest, many judicial raceshave become fierce electoral battlegrounds.Indeed, the more competitive judicial con-tests are now indistinguishable from guberna-torial and legislative contests, and they exhibitmany of the problems associated with modernpolitical campaigns.

The costs of judicial campaigns are rapidlyescalating. In some states, judicial candidatesmust raise $1 million or more to gain or keeptheir seats on the bench. These rising costsforce judicial candidates to place greateremphasis on fundraising and encourage thesecandidates—or their campaign committees—to raise money just like other politicians. Tosolicit the sums required to be competitive,judges often have to rely on attorneys and lawfirms as principal sources of funds, whichincreases the possibility of the appearance ofundue influence and creates the impressionthat justice is for sale.

The rising costs of judicial elections are in part the result of greater competition, butthey are also a function of changes in cam-paign conduct. Competitive judicial electionshave become highly politicized and partisancontests. They often feature broadcast adver-tising campaigns designed to communicatemisleading or critical attacks on a judge’s pastdecisions, or issue advertisements that aredesigned to elevate the salience of a singleissue as a means of shaping voter opinion.This kind of campaigning can place judicialcandidates at a distinct disadvantage.

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JUSTICE FOR HIRE

Because of the nature of the judiciary,states have regulated the campaign behaviorof judicial candidates to prevent these candi-dates from engaging in activity deemed inap-propriate. These codes of conduct placerestrictions on the content of campaign com-munications and specifically prohibit a judi-cial aspirant from making pledges or promis-es of conduct in office or any statements that“commit the candidate or appear to commit”the candidate to certain positions or decisionswith respect to controversies that are likely tocome before the court.6 Consequently, judi-cial candidates are often limited in their abili-ty to respond to attacks launched by outsideinterests in their election campaigns. Thisserves to discourage the robust level of politi-cal debate that is needed to facilitate reason-able voter decisions.

However, the legality of these codes hasbeen challenged in the Supreme Court. InJune 2002, the Court struck down Minnesota’sstatute, a ruling that renders similar laws ineight other states unenforceable.7 This rulingpromises to have a negative impact on thetone of judicial elections. Contests willbecome even more combative, and judicialraces will take on more of the character ofelections for political office. The risk of pre-judgment on issues that may come before acourt will increase. Consequently, the inde-pendence of the judiciary will diminish.Freeing judicial aspirants to behave more like elected politicians is not a step in thedirection of improving our judicial system.

Judicial elections have also suffered fromthe expanded participation of interest groups.With rising frequency and intensity, interestgroups are exerting influence in judicial cam-paigns, spending millions of dollars to try toelect judges who share their views or will servetheir narrow interests. The 2000 electionswere a major landmark. Organized groupsspent unprecedented sums of money onefforts to defeat sitting judges. In manyinstances, these groups carried out their cam-paigns by relying on “issue advocacy advertise-

ments,” advertisements that are not subject tocampaign finance restrictions because they donot expressly advocate the election or defeatof a candidate, so that they could spendunlimited amounts of unregulated funding intheir efforts to change the composition of thecourts. Their intervention in these electionssubstantially altered the dynamics of theseraces, and allowed these groups to have ameaningful effect on the election outcomes.

The changes taking place in the judicialselection process raise serious issues that needto be addressed. In our view, recent judicialelections reflect patterns that are reminiscentof those witnessed in congressional electionsin the early 1980s. In a growing number ofstates, judicial races are evidencing an “armsrace mentality” of rising expenditures, height-ened competition, and growing interest groupactivity. Judicial selection is thus becoming apolitical process that places pressure onlawyers, business organizations, and interestgroups to get involved in the competition to elect judges who will be favorable to theirpositions.

As business leaders, we are alarmed bythese developments. The dispensation of jus-tice must not be a function of such a subjec-tive factor as who serves as judge. But this isthe direction in which the current system isheading. This poses a grave risk to all citizens,since the quality of justice in any one state canaffect citizens in every state. For example, aclass action brought in one state can includemembers of the class from around the coun-try. Any particular case thus can determine therights of litigants in many other states. Groupswho are successful in electing judges whomthey consider to be favorable to their viewscan focus their litigation efforts in these statesin an effort to improve their prospect of afavorable decision. A logical response, giventhis possibility, is for opposing parties to joinin the fray to elect favorable judges. Legal disputes can thus quickly become political disputes. Litigation may thus be determinedmore by influences outside of the courtroom

3

Introduction and Executive Summary

than on the facts of a case and the precepts of the law.

Methods of judicial selection can thus havea major effect on business and the transac-tions that take place in the economy. Mostlarge corporations can be found doing busi-ness in every state and so can be sued in anystate. Plaintiffs can choose the state court thatwill be most favorable to them. The cost of the suit will be borne by every employee, customer, and stockholder, most of whom willbe residing in other states.

The effect can be even broader. Knowingthat it can be sued in whatever state court ismost favorable to plaintiffs, a multi-state busi-ness may simply stop selling a product thatentails risk of injury (or risk of litigation); itmay require consumers throughout the coun-try to pay more for the product; or it may bedeterred from initially putting a product outin the marketplace at all. The judgment ofone state’s courts can determine what is avail-able to consumers throughout the country, aswell as what it costs.

For all the considerations expressed above,CED has concluded that elections are an inap-propriate and detrimental method of selectingjudges. By this we do not mean that electionsare incapable of providing highly skilled andeffective judges. Indeed, CED recognizes andappreciates the high quality and professional-ism of many of the elected judges who nowserve on state and local courts. Rather, ourposition is that elective systems tend to under-mine the independence and impartiality ofjudges. They encourage judges to engage inpolitical and partisan activities that do notbefit the office. They provide outside interestswith substantial opportunities to politicizejudicial decisions and influence judicial behav-ior. They thus subvert the fundamental purpose that constitutes their underlyingrationale: to promote public faith in the legitimacy of the judicial process.

SUMMARY OFRECOMMENDATIONS

We urge public officials, business leaders,judges, members of the legal profession, andcommunity leaders in the states to join togeth-er to help educate the public on the impor-tance of an independent judiciary and theproblems inherent in a system of judicial elec-tion. We call upon these leaders to take actionto initiate reforms that would eliminate judi-cial selection by election, whether in the firstinstance or through retention elections.Because we recognize that such a fundamentaltransformation of the judicial selectionprocess is not likely to occur quickly, we alsorecommend a number of reforms that can beadopted in the interim to improve judicialelections. While these reforms will not resolvethe perverse influences of elections on thejudiciary, they will mitigate their most danger-ous effects.

CED strongly believes that appointmentshould be the basic principle that governs theselection of all judges. We therefore recom-mend that all states select judges through anappointment-based process.*

Appointment-based SelectionAppointment avoids the threat to judicial

independence inherent in elections. It facili-tates a more deliberative and thorough assess-ment of the qualifications of judicial candi-dates than that which takes place in the con-text of a political campaign. It also opens judi-cial positions to a broader pool of qualifiedcandidates, because selection is not limited tothose who choose to face an election.

Specifically, we recommend that statesadopt a commission-based appointment system. In this approach, each state wouldestablish a nonpartisan, independent judicialnominating commission that would be responsible for recruiting, reviewing, and recommending eligible nominees for judicialoffice. Our conception of the role of a nomi-

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JUSTICE FOR HIRE

*See memorandum by EDMUND B. FITZGERALD(page 52).

nating commission is based on those that arecurrently operating in 24 states. All appoint-ments to judicial positions would be madefrom the lists of candidates prepared by thecommission. We believe that this approach willallow for a dispassionate and thorough reviewof the qualifications and abilities of judicialaspirants, and minimize the influence of polit-ical considerations in the selection of judges.

Any system of judicial selection mustinclude appropriate mechanisms for holdingjudges accountable for their performance inoffice. The requisites of a democratic societydemand that a selection process balance judi-cial independence with accountability. This isparticularly important in an appointive selec-tion process, since it lacks what most citizensconsider to be the principal means of holdingjudges accountable: a vote of the public.

To facilitate periodic review and evaluationof judges, we call for the creation of judicialperformance evaluation commissions, similarto those now found in six states. All judgesshould serve for a limited term of office. Atthe end of this term, an independent judicialperformance evaluation commission wouldconduct a comprehensive, objective review ofa judge’s performance in office and preparean evaluation report and a recommendation asto reappointment. This information would beprovided to the governor or other appointingauthority in a state for use in making a deci-sion on reappointment.

Commission-based evaluation has provento be an effective means of holding judgesaccountable for their performance in office.We suggest that these commissions also con-duct mid-term reviews of judges as a means ofassisting judges in gauging their efficacy andoffering guidance for self-improvement.Commission evaluations would provide asource of independent and objective informa-tion on judges that is far more comprehensiveand unbiased than the narrow, often single-issue based assessments that are common inelection campaigns. Performance-basedreviews would make a valuable contribution in

enhancing deliberations on reappointmentdecisions.

We further note that the efficacy of a com-mission-based appointment system dependson the availability of a broad pool of candi-dates who are willing to serve as judges. Whilemost of the individuals who seek judgeshipsdo so out of a sense of service to their commu-nity or profession, the levels of compensationoffered for judicial office can discourage high-ly-qualified candidates from pursuing such ser-vice. We therefore suggest that state officialsreview current salaries and ensure that appro-priate levels of compensation are provided tojudges at all levels.

We acknowledge that appointive systems do not necessarily guarantee the most capableand independent judiciary. Nor do they whollyeliminate political or partisan influence in theselection process. But we find the merits ofthis method compelling, especially when com-pared to the procedures currently being usedin most states. In addition, we feel that anappointive system can provide the requisitelevel of accountability demanded in a democ-ratic society, so long as appropriate safeguardsare established.

We also recognize that those states that currently hold elections are not likely toreform their systems any time soon. Numerousbar associations, task forces, and judicial pan-els before us have called for reform of thejudicial selection process and endorsed amove to appointment or merit-based systems.However, public support for elections hasremained strong; the voters are not yet willingto relinquish their primary role in the selec-tion process.

Improving Judicial ElectionsAccordingly, we have also considered

reforms to improve judicial elections.Fundamental changes are needed in the wayjudicial campaigns are financed and conduct-ed if the risks presented by judicial electionsare going to be reduced. While the reforms weoffer will not resolve all of our concerns, since

5


we regard the core problems to be inherent in the nature of elections, we do believe thatthere are improvements that can be made tominimize the deleterious effects of the mostpressing problems.

We find that the most politicized andexpensive elections are those in which candi-dates run under party labels in partisan con-tests. This method of selection encourages theelectorate to view judges as partisan advocatesand often features substantial campaigning onthe part of party organizations or their interestgroup supporters on behalf of a party nomi-nee. We therefore strongly urge states thathold partisan elections to end this practice.

Longer terms of office represent anotherstructural change that can help to reduce thepolitical pressures on the judiciary. All toooften, judges have to seek reelection on such aregular basis that electoral considerations arealways close in mind. By lengthening terms ofoffice, judges will need to raise money andactively campaign less frequently. Longerterms will also lower the prospect of an elec-tion dominated by one case or a single recentcontroversial decision. We suggest as a generalrule that the length of term for trial andappellate court judges should be a minimumof six years and the term for justices on thehighest court in a state a minimum of tenyears. We believe that terms of this length willprovide a better balance between the princi-ples of judicial independence and accountabil-ity than those commonly found in currentstate systems.

No major improvement in the electoralprocess will be accomplished without address-ing the problems raised by the role of moneyin judicial elections. The financial demands of political campaigns, especially in the mosthard-fought contests, have forced judges tospend more time raising money and have dra-matically increased the risk of judicial deci-sions being subject to the influence of cam-paign donors. The financial activities associat-ed with judicial elections have led a growingshare of the public—and large majorities in

some states—to conclude that campaign con-tributions do influence court decisions. Theneed to raise money has thus substantiallydiminished public confidence in the courts.We are deeply concerned about this problem.

Major reform of judicial campaign financeis needed if the legitimacy of the courts is tobe sustained. We believe that the best availablemeans of protecting the judicial process fromthe potentially corrupting effect of privatedonations is to finance these campaigns withpublic monies. We therefore call for the estab-lishment of a full public funding program forjudicial campaigns modeled on the publicfunding programs now operating in Maine andArizona in gubernatorial and state legislativeelections. Under this approach, candidateswould be able to choose to fund their cam-paigns solely with public subsidies. Qualifiedcandidates who accept public resources wouldreceive a full subsidy equal to the amount of aset spending limit applicable to a given levelof judicial office. Those candidates who acceptthis funding would be required to forego addi-tional private fundraising and abide by cam-paign expenditure limits.

We find the case for public funding com-pelling with respect to judicial elections. Inour view, no judge should have to solicit pri-vate donations to finance a bid for office. Thedistinct nature of the judicial office and theneed for judicial independence in the admin-istration of law demands that judges be insu-lated from the potential influence of cam-paign donors. The best way to achieve thisobjective is to publicly fund judicial contests.

Beyond the financing of campaigns, wealso offer recommendations designed toimprove the transparency of financial transac-tions. We call for full, effective, timely publicdisclosure of election funding as an essentialelement of a system of political finance. Wesuggest ways that states can improve their dis-closure regulations by making comprehensivereports of candidate finances available to thepublic and providing electronic access tofinancial information.

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JUSTICE FOR HIRE

Further, we recommend changes tostrengthen and expand the scope of disclo-sure laws. We believe that disclosure should beviewed as a responsibility of donors, as well ascandidates, when it comes to judicial elections.Attorneys and law firms should be required tomake public any direct or indirect contribu-tions they give to judicial candidates. Placingthe responsibility for full disclosure on thesemembers of the legal profession will improvethe effectiveness of disclosure regulations.Most importantly, including indirect gifts in adisclosure regime will discourage efforts to cir-cumvent the rules by making contributions tothird parties that are acting on behalf of a can-didate. Stronger disclosure obligations will bet-ter safeguard the judicial process againstpotential conflicts of interest.

We also believe that the public has a rightto know more about the monies spent by orga-nized interests to influence judicial selection.In many instances, interest groups or partycommittees have relied on issue advocacy cam-paigns to avoid meaningful disclosure. Weargue that these expenditures should be sub-ject to full disclosure and set forth criteria fordetermining those communications thatwould be subject to such a requirement.

Finally, we advocate the adoption of judi-cial performance evaluation commissions,similar to those we recommend for appointedjudges, as a means of improving the informa-tion available to voters in states that holdretention elections. In this context, the role of the performance evaluation commissionwould be to determine whether a judge’s over-all performance merits a vote in favor ofretention. The commission would be responsi-ble for publishing an evaluation report andrecommending whether the judge should beretained. The content of this report and thecommission recommendation would then bewidely disseminated to the public throughvoter guides and other means of communica-tions for use by voters in making their votingdecisions. This reform would improve thequality of information available to voters inretention elections and help to balance theoften narrow focus on specific issues or casesthat has been the norm in contested retentionelections.

A more detailed analysis and discussion ofour specific recommendations for reform canbe found in Chapters 3 and 4 of this report.

7


State judicial selection systems can be divid-ed into three general categories: appointivesystems, merit selection systems, and popularelection systems. But this simple taxonomyfails to capture the complexity of state selec-tion processes. Over time, each state hasadapted its approach to conform to its ownunique experience and the particular struc-ture of its system of state courts. This has pro-duced numerous variations, to the pointwhere very few states can be said to use com-parable systems. The result is a patchwork ofprocedures that in itself raises questions aboutthe efficacy of current methods.

The various state selection systems are rooted in our historical experience and reflectdifferent responses to the issue of judicialindependence and accountability that contin-ue to inform public debate.

In framing a government under theConstitution, the founders of our republicadapted the model inherited from Englandand established a judiciary appointed forterms of good behavior, with nomination bythe President and confirmation by the Senate,and removable by impeachment. Theyopposed the election of judges because oftheir belief that judicial independence couldonly be achieved if justices were insulatedfrom the influence of public opinion and thewill of the legislature. They defended theirchoice by noting that a judiciary independentof the people and its representatives was need-ed to achieve the purposes of law and preservethe democratic values that our new nationespoused. An independent judiciary would

provide steady and consistent administrationof the law. It would be a better safeguard forindividual liberties against the actions ofmajorities in society or government that mightinfringe on rights of individuals or groups.And it would be a more effective check on thepower of government.8 They thus set forth theprincipal arguments that have informed thecase for appointed justices ever since.

In the early years of the republic, statesselected judges in a manner similar to thatcalled for in the Constitution.9 In all, the first29 states to enter the union adopted non-elective variations of the federal appoint-ment process to select most of their judges,although in eight of the original 13 coloniesthe power of appointing was bestowed uponthe legislature, not the chief executive, per-haps to enhance the “democratic” aspects ofthis authority.

With the rise of Jacksonian Democracy,states began to move towards elected judges.This shift was supported by the argument thatelections were needed to ensure the account-ability of the judiciary to the people; other-wise, justices would be responsive only to thepoliticians or bureaucrats responsible for theirappointments. The change also reflected thenotion that the people are the source of allauthority in government and would havemore respect for an elected judiciary.

Only 11 states (ten of the original 13 andHawaii) now hold no judicial elections(excluding probate judges, which are electedin four of these states). In these states, judgesare appointed, usually with the assistance of a

8

Chapter 2

State Judicial Selection Systems: An Overview

nonpartisan judicial nominating commissionthat develops a list of candidates. Judges aretypically appointed to serve for a limited termof office, after which time their performanceis reviewed and a decision is made whether torecommend them for reappointment. Thereare, however, major variations. In RhodeIsland, for example, high court judges areappointed for life, while in Massachusetts theyserve until age 70.

By the early twentieth century, elected judi-ciaries were criticized by some progressivereformers “as plagued by incompetence andcorruption.”10 In the view of these critics, elec-tions compelled judges to become politiciansand thus undermined the legitimacy of thecourts.11 These concerns gave rise to the meritselection system of selection, also known asthe “Missouri Plan” for the first state to adoptit, which called for the nomination of statejudges by a nonpartisan nominating commis-sion, the appointment of judges for a limitedterm by a high elected official from the com-mission’s list of nominees, and a subsequentunopposed retention election to determinewhether a judge should be retained. This system was endorsed (and still is) by theAmerican Bar Association in 1937 and wassubsequently adopted in a large number of states.

Thirty-nine states hold some sort of elec-tion for judges at some level. Elections areused to elect all appellate and general-jurisdic-tion judges in 18 states. Nonpartisan electionsare used in 12 states to select all judges and inseven others to select some judges. Partisanelections, which require candidates to run ona party line, are used in six states to select alljudges and in ten other states to fill some judi-cial positions. These partisan states includeMichigan, Ohio, and Idaho, where candidatesappear on the ballot without party labels, buttheir selection and campaigns are otherwisepartisan. Five states seek to reduce the influ-ence of partisan politics by holding their elec-tions in “off-periods” to create some separa-tion from the more prominent federal and

state elections that attract the highest voterinterest. Pennsylvania, for example, holds judicial elections at the time of municipal elections in odd-numbered years, whileTennessee votes on judges on the firstThursday in August of even-numbered years.12

Some version of the merit selection systemwith retention elections is used in 19 states forat least some judges. The systems vary widely.For example, in California, the Governor rec-ommends names of prospective candidates toa nominating commission, which reviews thequalifications of these nominees, instead ofthe nominating commission offering candi-dates to the governor, as is the case in moststates. In Illinois and Pennsylvania, judicialcandidates are first elected in partisan contestsand then run for reelection in retention con-tests. What is common to these states is theuse of retention elections to determinewhether a judge will remain in office.

Besides calling for different kinds of elec-tions, state procedures set forth varying termsof office. Among elected appellate judges,about 45 percent have six-year terms, 16 per-cent have eight-year terms, and the remaining38 percent have terms of ten years or longer.General-jurisdiction trial judges serve evenshorter terms, on average, with 19 percent fill-ing four-year terms, 62 percent having six-yearterms, and only 13 percent elected to terms of ten years or longer.13 Overall, most judgeshave to run for reelection or retention fairlyregularly.

This brief summary provides some idea ofthe diverse methods now being used to fillstate courts, and the emphasis that is placedon popular election. But it is important tonote that, in practice, the methods employedare not as distinct as this summary suggests.While some sort of election is clearly the pre-dominant means of placing judges in office,many judges are initially chosen through anappointment process rather than popularvote, even in those states that mandate elec-tion. It has become common in many statesfor judges to retire before the end of a term,

9


which provides the governor with an opportu-nity to make an interim appointment. Arecent survey conducted by the AmericanJudicature Society of 11 states that hold elec-tions found that more than half (53 percent)of the 1,929 judges at all court levels in thesestates were initially appointed to the bench tofill interim vacancies before running in anelection.14 The selection of judges in statesrequiring election is thus not simply a pureelectoral process, just as merit selection sys-tems are not a purely appointive process.Instead, most states employ what is bestdescribed as a “mixed system” that combinesaspects of appointment and election.

THE CHANGING CHARACTER OF JUDICIAL ELECTIONS

The 2000 elections represented a “water-shed” in judicial elections, due to the unprece-dented amounts of money spent in judicialraces and the fierce competition that tookplace in a number of high-profile statesupreme court contests.15 These races sharedthe traits that have come to define so manyother political campaigns—a rising tide ofcampaign money, an emphasis on televisionadvertising, and a predominance of negativecampaigning. The 2000 elections signal thatour nation is beginning to witness a new era injudicial electioneering. The changes takingplace are substantially altering the context ofjudicial elections and reflect the culminationof a number of trends that have been witnessed over the past two decades. In thissection of the report, we highlight some of themajor factors that are shaping the new politicsof judicial elections.

The Old Style of Judicial CampaignsTraditionally, judicial elections were low-

visibility, modestly-contested civil affairs thatwere conducted with the decorum and dignitythat befits a judgeship. Campaigns for judge-ships were low-cost endeavors, in which thecandidates raised modest sums or, not uncom-

monly, virtually no money at all. Most judicialcandidates conducted grassroots campaigns inwhich they would speak to groups interestedin their candidacies or disseminate literatureto make their names known to voters. The vast majority of races were uncontested, so thecandidates did not have to mount substantialcampaigns in order to be elected or retained.In many cases, candidates simply relied onparty support or typical voting patterns to gain election. Even where candidates did cam-paign, the races attracted little attention fromvoters. Indeed, low voter awareness and a relatively small number of votes cast were astandard feature of judicial contests.

Given this low level of intensity and relativelack of competition, it is not surprising to findthat these contests usually produced highretention rates and little turnover. Onedetailed analysis of all state supreme court jus-tices in 42 states who served between 1960 and1992 found that turnover in elections was solow that the method of selection made littledifference with respect to either the turnoverof judges or their length of tenure in office.While partisan elections produced the highestturnover rates and merit selection systems thelowest, the differences between the two werenot statistically significant.16 Similarly, a studyof retention elections held between 1964 and1998 found that only 52 of the 4,588 judgesfacing retention votes during this period weredefeated. In addition, a majority of those who were defeated were running in Illinoiswhere 60 percent of the vote is required to beretained.17 The study, however, did show thatin those instances where a judge was defeated,some personal characteristic associated withthe candidate, such as a controversial opinionhe or she had issued, was a key factor in deter-mining voting patterns.

In most states, judicial contests continue to reflect these traditional characteristics,especially in the case of retention elections.Candidates wage modest campaigns in a political environment in which voters have little awareness of the qualifications of the

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candidates or their records. Consequently,voter turnout is relatively light.

This low level of participation is partially afunction of the long ballots that are needed instates where a large number of judicial candi-dates are running. As the length of the ballotincreases, the number of individuals who actu-ally cast a vote for candidates listed furtherdown the ballot decreases. For example, inCook County, Illinois, the 2000 election ballotfeatured four state supreme court justices,nine appellate judges, and more than 150 trialjudges.18 More broadly, an analysis of retentionelections held throughout the states from1976 to 1996 determined that 30 percent ofthose who cast votes at the top of the ticketdid not cast ballots for the judges up for reten-tion.19 A sizable share of judicial races there-fore continue to attract little voter attention or interest.

The New Style of Judicial CampaignsThe traditional patterns in judicial elec-

tions began to shift in the late 1970s and early1980s.20 During this time, certain judicial con-tests became more intensive and expensive,and the dynamics of judicial elections irre-versibly changed.

Perhaps the most prominent example ofthe emerging shift was the 1978 retentionelection in California for Chief Justice RoseBird. Justice Bird’s liberal rulings from thebench on such controversial matters as capitalpunishment galvanized opposition in herretention election. This led to a combativeand hard-fought campaign in which her sup-porters and opponents spent a combined totalof at least $643,000. Bird won by the narrowestof margins, 51.7 percent of the vote, which ledher opponents to mount a recall campaign in1982 that cost at least $870,000.21 The battleover Bird’s retention continued into 1986,when Bird and two colleagues were chal-lenged again. The three justices raised a sub-stantial sum of money, but lost. In all, the twosides spent $11.4 million.

Other elections soon followed suit, leadingto a number of contentious, high-cost judicialraces in several more states. In the early 1980s,campaign funding became a major issue inTexas judicial campaigns. In 1982, for exam-ple, Texas Supreme Court candidate WilliamKilgarlin financed his unsuccessful $485,000campaign primarily with contributions fromlawyers who represented accident victims. Hisopponent, incumbent Judge James Denton,raised $161,000 in part from funds solicitedfrom lawyers that represented insurance com-panies. Another Texas judicial candidateaccepted $200,000 from a rancher who hadfaced a number of lawsuits.22 Contributions tojudicial candidates in other states also beganto be questioned, including a particularly con-troversial instance in Pennsylvania, whichinvolved contributions from an attorney whoselaw firm was in the midst of representing thePennsylvania Coal Mining Association in acase pending before the court.23

In other states, the conduct of campaignsbecame an issue. In a New York judicial racein 1983, the controversy revolved around cam-paign messages. The election featured radioads that alleged “mob influence” on certaincandidates and “Wall Street domination” ofjudges, as well as the claim of “organizedcrime picking and fixing judges.”24 In NorthCarolina, the Chief Justice was attacked inboth 1986 and 1990 for his decisions toreverse a handful of death sentences. In Ohioand Alabama, races for seats on the high courtbegan to be hotly contested and thereforeincreasingly expensive, as plaintiffs anddefense interests began to use these races asarenas for pursuing the objectives of business-es and those who seek to file claims againstthem.25

By the mid-1990s, judicial elections inother states had begun to demonstrate thatthe races in California, Texas, Pennsylvania,Alabama, Ohio, and North Carolina were notanomalies, but harbingers of things to come.

11


The amounts raised and spent by judicial can-didates, at least in the most competitive races,were on the rise, and elections were becomingmore contentious. At least insofar as can bedetermined from the available evidence, a sub-stantial number of judicial elections were turn-ing into contests characterized by increasedcompetition, higher levels of spending, agrowing reliance on funding from practicingattorneys, and expanding interest group activity.

Increased CompetitionJudicial elections have become more com-

petitive. A growing number of candidates arewilling to contest sitting judges, especially inthose cases where a judge has issued opinionsthat can be used to mobilize opposition or isotherwise considered to be at risk of losing. Anumber of factors have contributed to thistrend.

Judicial elections are not immune to thebroader changes in the political and electorallandscape. One reason why judicial electionsare more competitive is that all elections in anumber of states have generally become morecompetitive. This is especially true in theSouth. The demise of one-party dominance in some states has put an end to electoral envi-ronments in which most of the competitiontook place in Democratic Party primaries. InTexas, for example, the success of Republicancandidates in the 1980s, including the winningpresidential campaigns of Ronald Reagan andGeorge Bush, as well as other Republican vic-tories in state gubernatorial races and contestsfor federal office, helped to improve theprospects of other Republican candidatesseeking office. This led to a greater number of successful Republican candidates for judi-cial offices and, in turn, to more competitivejudicial elections.26

Competition has also been spurred by therole of the courts and their influence on con-troversial public policy issues. Courts haveassumed a more active role in our society as a result of the trend towards more litigation

and the willingness of those involved in legal disputes to take matters to court.Consequently, courts are more involved in poli-cy issues than they were decades ago, and areincreasingly asked to rule on disputes over par-tisan and polarizing issues, such as the deathpenalty, reproductive rights, school funding,and tort reform. Furthermore, this rise in judi-cial activism in policy decision-making extendsto areas of litigation and tort actions that havesignificant implications for the economic andpolitical interests involved, whether they becorporations or consumer groups, insurancecompanies or plaintiff’s attorneys, single issueorganizations or public interest groups. Manysectors of society can therefore have a stake injudicial decisions, and many individuals andorganizations are willing to pursue their inter-ests by playing a role in the selection of judges.

Supreme court elections have becomelightning rods for political controversy andserve as a vehicle for politics by other means.The legal disputes heard in the courtroomsare often continued in judicial elections.Recent supreme court races have featuredheated debates on such issues as the deathpenalty, reproductive rights, environmentalregulation, and school funding questions. Thepredominant issue in recent years, however,has been tort reform. For example, tortreform was the dominant issue in the 2000Alabama Supreme Court elections. In May of1999, an Alabama jury ordered a company topay three plaintiffs $580 million in punitivedamages and $970,000 in compensatory dam-ages for defrauding a family out of $612 onthe financing for a satellite dish. The legisla-ture responded to this decision by enacting anew tort reform law that included caps ondamages. Because the court had declared tortreform legislation enacted in 1987 unconstitu-tional, the business community was concernedabout the view the court would take of thenew statute. In an effort to secure approval forthe law, the business community mobilized tosupport the Republican candidates seekingpositions on the high court, and the elections

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produced a 5-to-4 Republican majority, eventhough Democrats held the governorship andeasily won control of both houses of the legis-lature.27

Similarly, tort reform was a focal point inthe Michigan, Illinois, Mississippi, and OhioSupreme Court races in the 2000 cycle. Theraces in Ohio were especially combative, sincethe high court had ruled against businessinterests on tort reform legislation and work-men’s compensation matters by 4-to-3 majori-ties. Justice Alice Resnick, a Democrat, hadauthored the 1999 opinion that struck downthe tort reform law, which required a cap onnoneconomic damages and placed a timelimit on the filing of malpractice suits. Theplaintiffs in the case were the Ohio AFL-CIOand the Ohio Academy of Trial Lawyers.Justice Resnick therefore became the principaltarget of an aggressive campaign that pittedbusiness organizations against the plaintiff’sbar.28 In this instance, Justice Resnick with-stood the assault on her record and wasreelected, but only after enduring a blisteringnegative advertising campaign that drewnational attention due to the derogatory con-tent of the ads, including one advertisementthat alleged that the justice’s decisions wereinfluenced by campaign contributions fromtrial lawyers.

Increased specialization within the legalprofession has tended to exacerbate the politi-cizing of judicial elections and thus furtherenhanced competition. In races for positionson civil courts, civil plaintiffs’ lawyers andmembers of the civil defense bar are likely tosupport different candidates. In races for positions on criminal courts, prosecutors andmembers of the criminal defense bar are likelyto support different candidates. Personalinjury lawyers are likely to be at odds withattorneys who represent businesses or profes-sional organizations. This encourages therecruitment and support of candidates, which can lead to more challengers and more competitive races.

While many candidates still seek judicial

office without having to face a serious chal-lenge, or run in retention elections thatattract little notice, the level of competition in judicial contests has clearly increased. Arecent survey conducted by the Center forAmerican Politics and Citizenship at theUniversity of Maryland offers an indication of just how competitive judicial contests mayhave become. The survey sampled candidatesfrom 29 states and defined a competitive elec-tion as a race in which the successful candi-date received between 40 percent and 60 per-cent of the vote. The findings, which excludedretention elections, revealed that 44 percentof the candidates were involved in competitivecontests, while 27 percent were not competi-tive and 29 percent were uncontested. Thereport noted that this represented a “remark-ably high level of competition,” especially ascompared to historic norms, and suggestedthat judicial elections “are even more competi-tive than elections for the U.S. House ofRepresentatives [where only 35 percent of the races were competitive in 1998] and moststate legislatures.”29

Rising ExpendituresAs competition increases, so does spend-

ing. But the dramatic growth in judicial cam-paign spending cannot be attributed to com-petition alone. Substantial sums of money arenow needed to gain a seat on many of thenation’s highest courts. And the money chasein judicial races may just be getting started.The 2000 elections saw a dramatic surge incandidate spending across the country, whichsuggests that the trend towards more expen-sive judicial campaigns will continue to esca-late in the future.

While high levels of spending are not yetthe norm in judicial elections, there is mount-ing evidence that expensive campaigns are thenew reality in many state supreme court racesand other high-profile contests. The grassrootsefforts of the past have given way to profes-sional campaigns that rely on paid consultants,polling, and broadcast advertising. A new

13


Table 1

Receipts of Competitive Pennsylvania Supreme Court Candidates, 1979-97 (in 1997 dollars)

Candidates Total $ Primary Primary General GeneralYeara & Vacancy raised Mean total mean totalc meanc

1979 4 for 1 613,900 153,475 598,127 149,532 15,773b 15,773b

1981 6 for 2 1,549,033 258,172 899,045 149,841 618,998 154,642

1983 5 for 1 1,170,380 234,076 1,170,380 234,076 —b —b

1989 3 for 1 2,817,901 939,300 931,048 310,349 1,886,852 942,686

1993 6 for 1 3,076,362 512,727 1,752,339 292,057 1,324,024 662,012

1995 7 for 2 4,535,075 647,868 1,504,072 214,867 2,963,921 710,980

1997 4 for 1 3,090,878 772,720 1,284,598 321,150 1,806,280 903,140

a. No vacancies existed in 1985, 1987, or 1991; thus no election for an open seat was conducted.b. One candidate captured both parties’ nomination in the primary and ran unopposed in the general election in 1979 and 1983.c. Total and mean expenditures are for primary winners only; a few primary losers reported modest contributions totaling $100,000

during the general election reporting period. Final sums and means reflect only contested elections.

SOURCE: James Eisenstein, “Financing Pennsylvania’s Supreme Court Candidates,” Judicature, vol. 84, no. 1 (2000), p. 13.

political environment has forced candidates ortheir campaign supporters to solicit ever larg-er sums to finance their bids for office.Candidates in many parts of the country feelgreater pressure to raise money due to theintervention of party organizations and inter-est groups in electoral contests. Spiraling cam-paign costs are thus becoming more common,and the trends in many states indicate thatmoney is just as important in judicial races asit is in other political contests.

The growth of judicial campaign spendingcan be illustrated by the experience over thepast two decades in supreme court elections n Pennsylvania and Texas. Between 1979 and1997, 44 candidates ran for a seat on thePennsylvania Supreme Court, including 35who ran in competitive races. The totalamount raised by the four candidates vying fora seat on the court in 1979 was about$614,000, on an inflation-adjusted basis (seeTable 1). In 1997, the four candidates who ranfor a seat raised almost $3.1 million, or five

times as much. The average receipts of asupreme court candidate rose from about$153,000 in 1979 (as adjusted for inflation) to more than $772,000 in 1997. The amountraised by the winning candidate grew from$173,000 in 1979 and $201,000 in 1981, tomore than $1.4 million in 1995 and $954,000in 1997.

Similarly, in Texas, the amounts of moneyspent by supreme court candidates have risensharply. The average amounts raised by candi-dates rose from $155,000 in 1980 to $1.5 mil-lion in 1994, when the changing party dynam-ics in the state fostered highly competitiveelections. In adjusted terms, the average rosefrom about $300,000 in 1980 to more than$1.7 million in 1994, a five-fold increase. Sincethen, the amounts raised have declined some-what, due to a lessening of competitionbrought about by the strength of the incum-bents sitting on the bench. Even so, candi-dates in 1998 averaged more than $500,000,while the winners averaged more than

JUSTICE FOR HIRE

14

$800,000. These sums represent a substantialincrease over the amounts spent less than twodecades earlier.30

The experiences in Texas and Pennsylvaniaare not atypical. Other state supreme courtelections indicate similar trends. For example,in Ohio, the race for Chief Justice of the OhioSupreme Court in 1980 cost $100,000; sixyears later, the race cost $2.7 million.31 InAlabama, the amounts spent by supreme court candidates grew from $237,000 in 1986to close to $2.1 million ten years later.32 InNorth Carolina, the largest amount spent in a supreme court race in 1988 was $90,330; by 1994, that amount had increased to$241,000.33 And this trend toward greaterspending is not confined to races for the high-est courts. In California, median spending oncontested elections for the Los AngelesSuperior Court went from $3,000 in 1970 to$70,000 in the early 1990s.34 In LackawannaCounty, Pennsylvania, the top three candidatesfor the Court of Common Pleas spent a com-bined $600,000, which was more than the totalamount spent by the eight candidates seekingpositions for the Superior Court, which is astatewide office.35

More broadly, an analysis of the spendingof those candidates who raised money for asupreme court race in recent years shows anupward trend. The 116 candidates who raisedfunds in the 1996 election cycle received anaverage of about $260,000, with medianreceipts of about $99,000. In the 2000 cycle,the 110 candidates who raised money solicited$431,000 on average, with the median amountrising to $244,000.36

The experiences in these elections provedto be a prelude of things to come. As the datafor 2000 indicate, judicial election spendingspiked upwards in this year, reaching levelsthat represented more than a simple extrapo-lation of prior trends. In all, state supremecourt candidates raised a total of $45.6 mil-lion, which represented an increase of 61 per-cent over the total received in 1998, and twicethe amount received in 1994. In a number of

states, new high-water marks for judicialspending were established. The averageamount raised by a state supreme court candi-date rose to more than $430,000, which was25 percent more than the average amountreceived in 1998. Candidates in the majorelectoral battlegrounds averaged even highersums. In Alabama, supreme court candidatesaveraged more than $1.2 million; inMichigan, more than $750,000; and in Illinoisand Ohio more than $640,000. Overall, 16judicial contenders each solicited more than$1 million for their campaigns in 2000.37

This steep increase in judicial spending is largely a result of a greater reliance on


Figure 1

Average and Median Funds Raised bySupreme Court Candidates, 1993-2000

■ Average $ ■ Median $

$500,000 ________________________________________________________

$450,000 ________________________________________________________

$400,000 ________________________________________________________

$350,000 ________________________________________________________

$300,000 _______________________________________________________

$250,000 ________________________________________________________

$200,000 ________________________________________________________

$150,000 ________________________________________________________

$100,000 ________________________________________________________

$50,000 ________________________________________________________

$0 ________________________________________________________

1993-94a 1995-96 1997-98 1999-00

a. This data comes from surveys conducted by the Justice AtStake Campaign. The data only includes candidates whoraised funds during the cycle in question. Generally, aboutthree-quarters of candidates raised funds. The exact num-ber of candidates in each group is as follows:

1993-94: 97 candidates, 72 raised funds;1995-96: 156 candidates, 116 raised funds;1997-98: 131 candidates, 95 raised funds;1999-00: 152 candidates, 110 raised funds.

SOURCE: Deborah Goldberg, Craig Holman, and SamanthaSanchez, The New Politics of Judicial Elections (New York:Brennan Center for Justice and National Institute on Moneyin State Politics, 2002), p. 8.

15

television advertising as a means of communi-cating with the electorate. Judicial candidatesengaged in the most competitive campaignsare devoting a substantial share of their cam-paign budgets to broadcast advertising. Ananalysis of supreme court candidate spendingconducted by the Brennan Center for Justiceat New York University School of Law and theNational Institute on Money in State Politicsfound that between 1989 and 2000, these can-didates spent about 25 percent of their cam-paign budgets on media and advertising. In2000, supreme court candidates spent an esti-mated $6.4 million on television advertising,all of this by candidates in the four states withthe most hotly contested elections—Alabama,Michigan, Mississippi, and Ohio. The use ofbroadcast advertising was especially intensivein Ohio and Michigan. Television advertisingaccounted for more than half of the totalexpenditures of judicial candidates in Ohio,and almost half of the spending done by candidates in Michigan.38

The type of election held by a state isanother factor that has a significant effect oncandidate spending. Candidates in states withmerit selection systems are required to run inretention elections only, where they face noopponent, but may be removed from office bythe electorate. In most cases, these candidatesperceive little risk of losing their seats, exceptin the relatively rare instances in which theelection has been politicized by oppositiongroups that disagree with a judge’s decisions.In contrast, candidates in partisan electionsusually run in contested races, where they doface opponents and voting tends to be dividedalong party lines. Candidates in these elec-tions often feel the need to spend significantamounts of money to win the approval of voters.

The relative competitiveness of differenttypes of elections is reflected in spending pat-terns. Partisan elections are by far the mostexpensive, and retention elections the least.From 1990 to 2000, candidates who ran inpartisan races each raised, on average, more

than $444,000, or almost four times theamount raised by candidates in nonpartisanelections, who each averaged $122,000.39 Ifthe 2000 election cycle is considered alone,the amounts spent were considerably higherthan these longer-term aggregates. In 2000,partisan candidates spent an average ofslightly more than $600,000, while nonparti-san contenders spent about $302,000. Thelevel of partisan candidate spending is equiv-alent to the levels of spending found in U.S.House races.40 In contrast, only one out ofevery 16 candidates who ran in retentionelections from 1990 to 2000 even had to raisemoney.41

Sources of Contributions: The Role of Lawyers

The rising costs of judicial campaignsheighten concerns about the sources of candi-date funding and the effects of campaign con-tributions on judicial independence. Theseconcerns are especially pronounced whencampaign money comes from donors who maylitigate before a court or represent intereststhat have a direct stake in the outcome of judi-cial decisions. In the current system, suchsources constitute the major source of judicialcampaign money.

Unlike most other political candidates,judges do not represent constituencies. Theycannot initiate specific policies or advocatespecific policy views that are shared by broadsegments of the electorate or hold specialappeal to particular groups of citizens. Theycannot publicly avow their views on legal dis-putes that may come before them or commitin advance to vote a certain way on a givenissue. They should not join with other electedofficials to pursue common political agendas,and usually seek office independent of anyparty organization. In other words, judges donot engage in the political practices on whichmost candidates for elective office rely to build a base of political support and appeal to a broad base of potential donors.

In the quest for political contributions,

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JUSTICE FOR HIRE

judges are also hampered by the fact that theytend to be relatively unknown to the elec-torate and lack popular name recognition.Those who know them best tend to be thosewho practice law or have an interest in theworkings of the court. Accordingly, a substan-tial portion of the monies raised by judicialcandidates comes from attorneys or law firms,or sources with a stake in a matter that isbefore, or might come before, a court. Theneed for judges to raise campaign money thusincreases the potential for real or perceivedconflicts of interest and enhances the possibili-ty that judicial rulings will be considered bythe public as a response to donor influence.

There is no uniform pattern of attorneycontributions across the states. In some states,they constitute a large share of the moniesraised by judicial candidates; in others, theyrepresent only a small fraction. It appears,however, that in those states where expensivecontests have become common, attorneys andlaw firms provide about half of the moneyraised by candidates. The rest comes mostlyfrom companies or economic groups that maybe affected by court judgments.

For example, in Pennsylvania, Texas, andOhio, three of the states that have experi-enced significant growth in the costs of judi-cial campaigns, attorneys are the single largestsource of campaign funds. A review of morethan 23,000 contributions of $50 or moremade to Pennsylvania Supreme Court candi-dates between 1979 and 1997 showed that 49percent of all donations came from attorneys,law firms, or law political action committees.42

Almost half of the money received by TexasSupreme Court candidates between 1994 and1998 came from lawyers and law firms, whileanother 13 percent came from energy compa-nies and 12 percent from finance, real estate,and insurance companies.43 In Ohio, supremecourt candidates from 1993 to 1998 received52 percent of their funds from lawyers andlobbyists, and another 11 percent was con-tributed by finance, real estate, and insurancecompanies.44 In West Virginia, trial lawyers

were responsible for more than half of thefunding received by three of the four supremecourt candidates seeking election in 2000.45

The Expanding Role of Interest GroupsOrganized interest groups are another

important source of funding and support injudicial campaigns. Interest groups seek to usetheir resources to influence the compositionof the courts, just as they seek to influence theselection of members to the other branches of government. In the election context, orga-nized groups make contributions to candi-dates. They also independently initiate directmail campaigns, advertising campaigns, andvoter turnout programs to assist their favoredcandidates. In addition, groups endorse candi-dates in an effort to provide voters with a cuethat could determine their ballots. They cantherefore exert a substantial influence in judi-cial campaigns. Their basic purpose is to electjudges whom they believe will support theirinterests.

The expanding involvement of the courtsin controversial public policy issues has provid-ed interest groups with a strong incentive tobe more active in judicial campaigns. Theseincentives were recently summarized by JudgePaul Carrington in the context of the develop-ments that have taken place in Texas.

Political interest groups and parties beganabout 1980 to take a heightened interest injudicial elections. In some states, tort andinsurance law moved to the top of the politi-cal agenda for judicial elections. By 1980,local groups of personal injury lawyers wereorganized to secure the election of judgesfavoring their clients. For a time, they seemedto control elections to the Supreme Court ofTexas. Their success, however, evoked aresponse from insurance companies and oth-ers whose financial interests were threatenedby a ‘plaintiff’s court,’ and in recent years,“habitual defendants” have been more suc-cessful in securing the election of judgesthought to favor their interests.46

Because court rulings may affect manyissues and interests, interest groups have an

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incentive to mobilize in favor of certain judi-cial candidates. This often provokes a counter-mobilization by opposing groups. A diversearray of interest groups has thus focused onjudicial contests as a vehicle for pursuing theirnarrow interests. The most active participantstend to be groups on either side of politicizedissues, including the death penalty, abortionrights, tort reform, landowner property rights,and a host of local issues. Some groups noweven regard the courts as their principal arenaof public policy conflict, even more so thanthe legislature, providing further impetus totheir willingness to devote their resources tothese contests.

Interest groups also have an incentive toparticipate in judicial elections because theyhave a distinct advantage in shaping the politi-cal discourse in these contests. Due to thenature of the office, judicial candidates arenot permitted the same ability to speak freelyin election campaigns as is granted to otherelected officials. Most states holding judicialelections have adopted some form of the 1990version of the American Bar Association’sModel Code of Judicial Conduct, which isdesigned to protect the independence andimpartiality of the judiciary by placing restric-tions on political activities deemed inappropri-ate to the judicial office.47 These codes of con-duct include restrictions on the content andcharacter of a candidate’s communications,whether made in the form of speeches, broad-cast advertisements, or responses to question-naires and other public inquiries. More specif-ically, many codes prohibit candidates frommaking or issuing statements that includepledges or promises of conduct in office,other than the faithful and impartial perfor-mance of the duties of the office, such as state-ments that commit or appear to commit ajudicial candidate to certain positions or deci-sions with respect to cases or controversiesthat are likely to come before the court, orcommunications that misrepresent the qualifi-cations or positions of either the candidate oran opponent.

Consequently, judicial candidates are con-fronted with an uneven playing field whenopposed by organized groups. A group couldmake the claim in a campaign advertisementthat a judicial candidate would not supportthe death penalty in a notorious murder casepending before a court; a judge cannotrespond by refuting the claim and stating howhe or she plans to vote on the matter. Interestgroups therefore have a greater opportunityto influence the agenda of public debate injudicial campaigns than they do in legislativeor gubernatorial campaigns. This encouragesinterest group participation in judicial racesthat entail a vital interest.

Interest groups were especially active andaggressive in the 2000 elections. State supremecourt contests, in particular, were notable forthe intense levels of interest group election-eering that they attracted. These efforts oftendefined the major issues in the race, andreflected an attempt by organized groups toinfluence the outcomes in particular states.Their expenditures contributed to the highcosts in these elections, since candidates wereforced to try to match the resources beingspent against them.

Although the candidates were responsiblefor most of the spending in judicial elections,interest groups and political party committeesorganized as never before to elect “their”judges in the 2000 contests. In the major bat-tleground states—Alabama, Michigan,Mississippi, and Ohio—groups carried outtelevision advertising campaigns designed tosupplement the advertising being done bytheir preferred candidates. Most of theseefforts took the form of “issue advocacy”advertisements—ads that did not “expresslyadvocate” the election or defeat of a candidatebecause their texts did not include specificwords such as “vote for” or “support.” This tac-tic allowed interest groups to circumventapplicable campaign finance regulations andspend unlimited amounts without having todisclose their expenditures or sources of fund-ing to the public.

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The advertising done by interest groups setthe campaign agendas in the battlegroundstates. In all of these races, interest groupsemphasized highly controversial, “hot-button”political issues that became the focal point ofthe campaign. In fact, the emphasis on tortliability and reform in the 2000 elections waslargely a product of interest group advertising.Of all the ads broadcast in the battlegroundstates on liability issues, about two-thirds werepaid for by interest groups and political partycommittees.48 The interest group campaigningframed the debate, thereby forcing the candi-dates, or the parties that supported them, torespond.

Interest group electioneering also exerteda major influence on the tenor of the debatein these contests. Instead of presenting thequalifications and credentials of those seekingoffice, organized groups criticized candidatesfor their views on specific issues, thereby chal-lenging their character and impartiality. Ofthe 24 separate ads sponsored by groups orparty committees, only one discussed a candi-date’s qualifications or background. Morethan 80 percent of these ads, according tointerpretive criteria established by theBrennan Center for Justice, were “attack” adsbroadcast against particular candidates.49 Thistype of negative campaigning, which is thetype of campaigning judicial codes of conductwere designed to prevent, principally served totarnish the image of judges and weaken publicconfidence in those judges who were placedon the bench.

The most extensive campaign in 2000 wasthe one waged by the U.S. Chamber ofCommerce’s Institute of Legal Reform and itsaffiliated state organizations. The Institutemounted aggressive campaigns in judicialraces in Alabama, Indiana, Michigan,Mississippi, and Ohio, as well as in the stateattorney general race in Indiana, at a reportedcost of at least $10 million.50 Of the candidatesthe Chamber endorsed, 13 of 15 won. InOhio, the Ohio Chamber of Commerce ran atelevision ad that challenged the integrity of

Justice Alice Resnick, who had authored acontroversial tort law ruling. The ad featureda statue of “Lady Justice” peeking beneath herblindfold, while piles of special interest moneytipped her scales. The ad asserted that hersupport for positions advocated by trial lawyerswas linked to the contributions she hadreceived from attorneys in her previous race,and concluded: “Alice Resnick. Is Justice forSale?”51 Here the strategy may have backfired,since the ad itself became a central issue inthe race, and Justice Resnick won her election.

Interestingly, the Michigan Chamber ofCommerce also participated in the Ohio race.The Michigan organization ran newspaperand television ads that urged Ohio businessesto move to Michigan because “the judicialrestraint of the Michigan Supreme Court andfair laws have helped create a healthy econom-ic climate in Michigan.”52 In Mississippi, theChamber spent an estimated $958,000 onbehalf of the Chief Justice, two other incum-bents, and one challenger. This effort led triallawyers to form two political action commit-tees to oppose the Chamber’s campaign.These committees, Mississippians for AnIndependent Judiciary and Mississippians forFair Justice, spent a combined $312,000. TheChief Justice, who had served for 18 years andhad never been opposed in prior elections,lost the contest in an upset.

The Chamber was not the only interestgroup active in the 2000 elections. The Ohiorace also featured electioneering by Citizensfor a Sound Economy and Citizens for aStrong Ohio, two business-related groups, aswell as teacher and labor unions, and triallawyer associations.53 In Illinois, a tort reformgroup, the Illinois Civil Justice League, spentabout $25,000 to run advertisements in 15newspapers.54 In Idaho, a sitting SupremeCourt justice, who had authored an opinionthat upheld a federal reserved water rightsclaim in three wilderness areas, was defeatedin an election that featured significant cam-paigning by both the Democratic andRepublican parties, as well as the Idaho Trial

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Lawyers Association, the Idaho ChristianCoalition, and a political action committeecalled Concerned Citizens for Family Values.55

Former federal judge and CongressmanAbner Mikva, commenting on the 2000Illinois Supreme Court elections, noted that“every special interest in the state—the insur-ance, the defense bar, everybody—is therewith big bucks to promote their candidates.”56

This observation could be applied to a largenumber of states. Interest group electioneer-ing is a staple of competitive judicial cam-paigns, and stands as another source of theincreasing political pressures being placed on judicial candidates.

SummaryRecent election cycles indicate a trend

towards more expensive and combative judi-cial elections. In a growing number of races,judicial contests are defined by the practicesand patterns that have led many observers tocondemn, in general, the conduct in politicalcampaigns. The money flowing into competi-tive judicial elections suggests that campaignfinancing is playing a greater role in the judi-cial selection process. The ability to raisefunds is becoming an increasingly importantaspect of a bid for judicial office, requiringcandidates, especially those in highly competi-tive and partisan elections, to place greateremphasis on the solicitation of campaign gifts.While this emphasis on fundraising has notbecome a predominant characteristic of mostjudicial elections, current trends indicate thatbig spending is on the rise and that largercampaign coffers are going to be needed byan expanding number of candidates.

Candidates targeted by political groups willfeel the greatest pressure to raise money, espe-cially if interest groups and political partiesadhere to the strategic approaches they adopt-ed in 2000 and continue to engage in aggres-sive campaigns to influence judicial selection.In attempting to meet the financial demandsgenerated by a changing political environ-

ment, these candidates may be encouraged tosolicit even larger sums from members of thelegal profession and others who are likely tohave an interest in judicial outcomes. The cur-rent system of judicial elections thus poses agreat risk to the independence and impartiali-ty of judicial outcomes. Indeed, it is our viewthat it is already taking a toll on the legitimacyof the judicial process.

THE EFFECTS OF JUDICIALELECTIONS

Courts are legal institutions. Judges areexpected to act on the basis of legal princi-ples, not political principles. A judge’s role isto serve the law, not the political forces of themoment, and to do so in an impartial andneutral manner. Judges are not supposed toreact to public opinion as legislators are. Thepopular will is embodied in laws enacted bypolitical institutions—legislatures and gover-nors—subject to the overriding constraints ofthe federal and state constitutions, which mayalso be determined by the public will throughthe amendment process. Judges are supposedto interpret and apply these laws with aresponsibility only to the law itself and, to theextent not changed by statute, accepted prin-ciples of common law. Insofar as judges aban-don this strict adherence to law in exercisingtheir judgment, so do they abandon the dis-tinctive claim that distinguishes them frommembers of the other branches of govern-ment and from other processes of dispute resolution.

To be effective, the rule of law requires anindependent and impartial judiciary that isfree from political influence. Selection by elec-tion operates against this fundamental princi-ple. Elections subject judges to political pres-sures and electoral incentives that encouragethem to take notice of the demands of publicopinion and voter response to their positionsin the performance of the responsibilities ofjudicial office.

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Competitive election contests place pres-sure on judges to defend past decisions and totake positions on issues that may come beforethem. In theory, judicial campaigns could bewaged on the basis of a candidate’s qualifica-tions for office, character, or general approachto judicial decision-making. There are judicialelections, especially those retention electionsthat attract little public attention, as well asmany of the races for lower court positions,that are characterized by this type of dis-course. But even these contests can necessarilyand quickly evolve into a discussion of thespecifics of how a candidate has ruled orwould rule on particular issues. A fundamen-tal purpose of elections, after all, is to providethe electorate with an opportunity to make achoice of candidates “based on the issues.”

The experience of competitive electionshas demonstrated that judicial elections, inpractice, are principally referenda on how acandidate will decide or has decided cases, orelse a debate on specific issues that are salientto voters. This is particularly likely when thereare strong opinions among citizens about anopinion issued by a judge, or strong views heldby an interest group about the merits of a judi-cial candidate. The pressure on candidates tomake their positions known is thus intensified.Some candidates may react by deciding tomake statements indicative of their views, orencourage surrogates to speak for them.Elections therefore contain the threat of pre-judgment, which undermines the objectivedispensation of justice. As the intensity of acampaign increases, so does this risk.

The prospect of facing an election, espe-cially a potentially divisive election, may pres-sure judges to give greater credence to popu-lar opinion and make it more difficult forthem to make independent and objective deci-sions. Elected judges face the same electoralconcerns as other elected officials. It wouldnot be surprising to find that some judgesyield to the temptation to make decisions thatsatisfy the demands of a vocal and committed

group of voters. Indeed, inherent in the con-cept of electing judges is the idea that theseofficials should in some way be accountable tothe popular will, or at least be affirmed by thecitizenry as a legitimate claimant to office. Therisk to judicial independence created by theseelectoral incentives is obvious. When the needto face the electorate does influence judges’decisions, however marginally, the properadministration of justice is compromised.

Elections further diminish the legitimacy ofthe judiciary to the extent that they lead thepublic to question the impartiality or integrityof judicial decisions. Elections place judicialcandidates in a public context that encouragesvoters to view them as political or partisan fig-ures. Since most citizens do not follow theworkings of the courts closely and judgesrarely receive the media exposure provided tomost elected officials, public knowledge ofjudicial candidates primarily stems from theinformation obtained in election campaigns.The conduct of recent campaigns suggeststhat the information the public receives is pre-sented in highly partisan or politicized infor-mational frameworks. Citizens are unlikely toregard a judge as a neutral arbiter after beingexposed to television advertising campaignsthat impugn his or her character or questionthe quality of previous rulings.

Campaign fundraising presents citizenswith an even more compelling rationale fordoubting the integrity of the court decisions.Given the large sums of money now beingraised in some judicial contests, citizens can-not help but question the motives behindsuch giving, and wonder what effect thismoney might have on the behavior of judges.These concerns may lead many citizens,including those who come before the courtsas litigants in a case, to conclude that prefer-ence is given to campaign donors. The needto raise money, especially the need to raisehundreds of thousands of dollars, is an elec-toral necessity that severely undermines publicfaith in the fairness of the judicial process.

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Effects on Judicial BehaviorThe influence of elections on judicial

behavior is difficult to determine, becausejudicial decisions cannot always be explainedas a consequence of any one factor. However,the evidence that is available raises alarmingconcerns about the effect of political consider-ations on judicial opinions and brings intohigh relief the detrimental aspects of an elect-ed judiciary.

A telling acknowledgement of the effectelections can have on a judge’s thinking wasrecently made by a member of the WestVirginia Supreme Court:

As long as I am allowed to redistribute wealthfrom out-of-state companies to injured in-stateplaintiffs, I shall continue to do so. Not only ismy sleep enhanced when I give someone else’smoney away, but so is my job security, becausethe in-state plaintiffs, their families, and theirfriends will reelect me…. [Indeed,] the out-of-state defendant can’t even be relied upon tosend a campaign donation.57

A former justice of the California SupremeCourt has warned, “There’s no way a judge isgoing to be able to ignore the political conse-quences of certain decisions, especially if heor she has to make them near election time.”58

A justice of the Supreme Court of Texasalso highlighted the dilemma under whichelected judges are forced to operate. Pointingto the canons of judicial conduct that requirea judge to be independent and impartial,Justice John Cornyn suggested that thesecanons are “a convenient fiction in an electivesystem.” He asked:

How can judges, saddled with all of the bag-gage of political campaigning and forced tosolicit campaign contributions from lawyerslikely to practice before their courts, be saidto conduct themselves in a manner that pro-motes public confidence in the integrity andimpartiality of the judiciary?….[W]hile elec-toral accountability is an unquestionablydesirable check on the official performanceof members of the legislative or executivebranches, its shortcomings as a check on judi-cial power are exposed when it clashes, as it

inevitably must, with the judge’s unique rolein a republican form of government….[M]oney and judges simply do not mix.59

As Judge Richard Neely has succinctly stat-ed, “I can vouch from personal experiencethat the campaign contribution problem isextremely acute and almost impossible to handle.”60

These testaments to the influence of elec-tions on judicial behavior are substantiated byrecent research, which supports the view thatelected judges must be inevitably motivated insome degree by electoral considerations. Anumber of studies suggest that justices aremore likely to acquiesce to court majorities,due to concerns about the electoral ramifica-tions of votes on controversial issues such asthe death penalty. In politically competitivestates where justices are chosen on partisanballots, justices are more likely to join courtmajorities in controversial cases. In casesupholding the death penalty or involving theimposition of capital punishment, liberalcourt members are less likely to file dissentsfrom conservative decisions supporting capitalpunishment. By simply acquiescing and notdissenting, justices reduce the risk that theiropinion will be a focal point of a future elec-tion campaign, since they do not distinguishthemselves from the majority view on thecourt and, in many instances, the majorityview among their “constituents.”61

A judge’s decision not to dissent fromestablished court majorities does not changethe outcome of a case. So, at least in theseinstances, the effect of elections, although stillquestionable, is mitigated. But elections alsoshape voting decisions in death penalty cases.In certain circumstances, elected judges act tominimize electoral opposition by casting votesthat they believe conform to expressed voterpreferences. This is particularly true whenjudges have previous political experience,come from competitive election districts, andare near the end of a term and thus about to face an election. This was the finding of

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a study based on the individual votes cast by35 state supreme court judges in 238 deathpenalty decisions issued in Texas, NorthCarolina, Louisiana, and Kentucky, four stateswhere large percentages of the public favoredthe death penalty as a punishment for murder.Even after factoring in a variety of explanatoryfactors for judicial voting patterns, the studydetermined that electoral factors “increasedthe probability that justices will uphold deathsentences initially imposed by trial courts.” Itconcluded that “concerns for reelection enterinto judicial decisions and that judicial behav-ior reflects the pursuit of both personal andpolicy goals.”62

Political influences can also shape the deci-sions in arbitration cases. For example, a rigor-ous analysis of arbitration cases in Alabamacourts found that “arbitration law in Alabamaseems to have no doctrinal integrity that sur-vives the vicissitudes of the interest group bat-tle.”63 In arbitration cases in this state, evidenceindicates that the court often splits along high-ly partisan lines. Justices whose campaigns arefunded by plaintiffs’ lawyers are all Democratswho oppose arbitration, while justices whosecampaigns are funded by business are nearlyall Republicans who favor arbitration. Thestudy established “a strong correlation betweena justice’s source of campaign funds and howthat justice votes in arbitration cases.”64

The potential influence of money on courtdecisions was also the focus of recent researchon political contributions to state supremecourt justices in Wisconsin. In this instance,every elected justice had received moneyfrom an attorney or party who later camebefore the court. Moreover, 75 percent of thecases heard by the court between 1989 and1999 involved a party, law firm, business, orother organization that had contributedmoney to a supreme court candidate. In mostinstances, however, the sums donated wererelatively small, and whether these donationshad a material influence on judicial rulingswas not determined. Indeed, the evidence wasinconclusive: of the 29 contributors who gave

$10,000 or more, only five appeared beforethe court, and their success was mixed.65

Effects on Public PerceptionsWhether campaign contributions or other

political influences shape judicial decisions isonly part of the problem judicial electionspose for judicial independence. Just as impor-tant, as the Wisconsin example suggests, is theeffect of political activity on public percep-tions of the courts. With respect to justice,appearance can become reality. The appear-ance of improper influence can cause citizensto doubt the impartiality of the courts and theintegrity of judges. If members of the publicbelieve that judges are influenced by the needto be elected or retained, they may well doubtthe fairness of the judicial process and loserespect for the legal system.

Not surprisingly, the monies involved inmodern judicial campaigns are fueling publicperceptions that judges are beholden to orinfluenced by their contributors. These atti-tudes may in part be a reflection of generalattitudes about the role of money in politics,developed from the campaign finance issuesraised in other types of candidate elections orthe recent national debate on campaignfinance reform. Nonetheless, these attitudesare becoming pervasive.

While the general level of public confi-dence in the judiciary remains high as com-pared to the level of trust granted to othergovernment institutions, citizens display agrowing cynicism and loss of faith with respectto the impartiality of the judiciary. For exam-ple, a 1999 nationwide survey by the NationalCenter for State Courts found that nearly 80percent of the respondents agreed that judgesare “generally honest and fair in decidingcases.” But the survey also revealed that 81percent agreed with the proposition that“judges’ decisions are influenced by politicalconsiderations,” and 77 percent believed that“elected judges are influenced by having toraise campaign funds.”66

Statewide surveys confirm these findings.

In Ohio, a 1995 survey reported that nine outof ten residents believed that campaign contri-butions influenced judicial decisions.67 A morerecent poll in Washington State discoveredthat 76 percent of those surveyed thoughtjudges were influenced by political decisionsand 66 percent by having to raise campaignfunds.68 In Pennsylvania, a 1998 poll conduct-ed for the state’s Special Commission to LimitCampaign Expenditures found that 59 per-cent of the state’s citizens felt that judicial can-didates “spend too much money,” a percent-age that rose to 81 percent when those sur-veyed were told that one candidate had spent$3 million. Encapsulating the degree to whichPennsylvanians worry about the judicial sys-tem, 68 percent agreed with the view thatmodern campaign trends threaten “the basicfairness and integrity of our political system.”69

Even more sobering opinions were foundin Texas, where a poll conducted by the State

Bar Association found that 83 percent ofTexans believed that campaign contributionshad an influence on judicial decisions.Furthermore, this view was shared by thosewith the most knowledge of the judicialprocess. In fact, 48 percent of judges, as wellas 69 percent of court personnel and 79 per-cent of attorneys, agreed that contributionsinfluenced judicial outcomes.70

These surveys may reflect misperceptionson the part of the public. Even so, they repre-sent a significant cause for concern. An effec-tive judiciary depends on perceptions of itsfairness and neutrality. To the extent thatmembers of the public perceive the court tobe influenced by campaign contributions,public confidence in the judiciary is eroded.The current system yields perceptions of cor-ruption or undue influence that need to beaddressed if the judiciary is to fulfill its pur-pose in our democratic society.

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The American legal system depends on anindependent and objective judiciary thatdecides cases on their merits. As this reportdiscusses, CED believes that electing judges isinherently incompatible with this concept ofthe judiciary. Most of the litigation in thiscountry—perhaps as large a share as 98 per-cent of the cases—is conducted in statecourts.71 Most of these state court judges areeither selected by popular election or face aretention election. America is the only coun-try that elects such a large proportion of itsjudges by popular vote.72 Such a system isinconsistent with our objective of credible,impartial, and effective dispensation of justice.

Thus, the current system of selecting statejudges is in need of fundamental reform. Inour view, the best method of promoting inde-pendent and impartial judiciaries is to selectjudges by appointive processes and eliminateelections altogether. But we realize that such acomprehensive reform of state selection sys-tems will not come quickly. Elections in oneform or another will continue to be used bymost states for the foreseeable future. Wetherefore recommend states that continue to hold judicial elections adopt a number of reforms that will improve the electoralprocess. These changes will not eliminate thegrowing political pressures judicial candidatesface, but they will mitigate the worst conse-quences of the electoral process.

END PARTISAN ELECTIONS ANDLENGTHEN TERMS OF OFFICE

Partisan elections are the least desirableform of judicial selection because they presentthe greatest threat to judicial independence.In partisan races, candidates must run underparty labels, which encourages voters toregard them as partisan advocates. Thismethod also spurs party committees to inter-vene in the campaigns on behalf of their can-didates, which increases the amount of nega-tive campaigning and the level of combative-ness in these races. Partisan elections, there-fore, tend to be the most expensive contests,which compels candidates to place moreemphasis on the burdensome task of raisingmoney. They thus lead citizens to concludethat money bears an influence on the actionsof judges.

A first step towards improving the currentelectoral process is to eliminate partisan con-tests. We strongly urge those states that usethis method to select judges at any level torevise their system to include only nonpartisanelections. No judicial candidate should everbe asked to declare his or her partisan prefer-ence in seeking judicial office.

Longer terms of office constitute anotherstructural change that would ameliorate political pressures on the judiciary. States that require judges to run for office shouldensure that there are long intervals betweenelections. This will help reduce the adverseeffects of electoral contests on judicial behav-ior. Short terms of office require justices to

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Chapter 3

Improving Judicial Elections

present themselves before the electorate moreoften, thus increasing the possibility thatjudges will make decisions with political calcu-lations in mind. At the very least, they raisethe perception of such influence, particularlywhen a judge has to render an opinion on apolitically salient or controversial matter closeto an election year. As we have observed, thevast majority of elected judges must now seekoffice at least as often as U.S. Senate candi-dates, and many of them must run even morefrequently. Such regular appearances beforethe electorate encourage voters to regardjudges as pragmatic politicians, not neutralarbiters of the law.

Longer terms of office will serve to reducepolitical pressures by making the need toraise money and actively campaign less fre-quent. They also lower the chance that anelection will be dominated by one recent “hotbutton” decision. And they may reduce theperception that judges are making decisionsbased on political calculations geared towardan approaching election. Longer terms there-fore promote a better balance between theprinciples of judicial independence andaccountability.

While the appropriate length of a term willvary depending on the type of court and thejudicial structure within each state, we suggestas a general rule that the length of term fortrial and appellate court judges should be aminimum of six years and the term for justiceson the highest court a minimum of ten years.

ELECTIONS SHOULD BE PUBLICLY FUNDED

Campaign contributions to political candi-dates raise the inherent risk of elected officialsproviding quid pro quo benefits in exchange forpolitical donations or in response to largeexpenditures made on their behalf. Politicalfundraising activities are thus a major cause ofunease at every level of government.Preventing such corruption or even theappearance of corruption has been deemed

by the Supreme Court to be the compellingstate interest in the financing of elections andthe principal justification for the regulation of campaign funding.73 The legitimacy of ourgovernment is a function of our ability to protect it against the undue influence of campaign monies.

State campaign finance laws attempt toaddress this imperative in part by placing lim-its on the size and sources of political contri-butions. While these measures reduce thepotential for corruption, they do not whollyeliminate it. This is especially true in the caseof judicial elections. The mere act of solicitingcampaign gifts, even when done in accor-dance with legal limitations, is not in keepingwith the role of a judge and can underminepublic perceptions of the impartiality of thejudiciary. The problem becomes particularlytroublesome when judges are required to raiselarge sums of money from those who have aninterest or stake in court rulings, or fromthose who may appear before the court insome future matter. And, as detailed earlier inthis report, these sources are responsible formost of the money in judicial campaigns.

Some states have taken further precautionsand attempted to insulate the judiciary fromthe influence of campaign contributors byimposing restrictions on fundraising activity toavoid appearances of impropriety. For exam-ple, 27 states prohibit sitting judges from per-sonally soliciting campaign contributions.Thirteen of these states place the same prohi-bition on those seeking a judicial position. Inthese states, candidates are required to form acampaign committee to raise funds on theirbehalf. But even where these restrictionsapply, judicial candidates report spending atleast some time raising money.74 Furthermore,there is no evidence that the public perceivesa major distinction between funds raised by acandidate personally and funds raised by acandidate’s campaign committee. Indeed, the common understanding of how politicalcampaigns work would lead to the conclusionthat the two are one and the same. Prohibi-

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tions on personal solicitation of campaign giftsby judges are thus a relatively ineffectivemeans of addressing the problems created by campaign fundraising.

Contribution limits and restrictions on candidate fundraising do not go far enough in addressing the issues raised by the role ofmoney in judicial campaigns. We believe thatthe best available means of protecting the judi-cial process from the corruptive effects ofpolitical donations is to finance campaignswith public monies. Simply stated, the moremoney candidates receive from public sources,the less they will have to raise from individualsand interest groups who may have an interestin influencing particular government deci-sions. Public funding thus reduces the risk of donor influence.

Furthermore, public funding offers a num-ber of other prospective benefits. It canincrease the pool of candidates willing to seekjudgeships by opening the selection process tothose who might otherwise be deterred by theneed to raise large sums of money. It canlower campaign costs by eliminating the needto pay for fundraising efforts. More important-ly, it can reduce campaign spending by mak-ing expenditure ceilings possible. To date, theSupreme Court has held that campaign spend-ing limits are constitutional only when theyare established as a condition of a candidate’sdecision to accept public subsidies.75 Publicfunding is the key to controlling rising cam-paign expenditures.

The effect of campaign contributions onthe behavior of elected officials and the con-tent of public policies is a matter of graveconcern in any branch of government, but itis a particularly acute problem with respect tothe judiciary. Throughout this report, we havehighlighted the distinct nature of judicialoffice. The judicial branch of government isbased on principles that distinguish it fromthe other branches of government. Judges arenot representatives. They are expected to beindependent and impartial arbiters of law,responsible only to the law. Their behavior

must be appropriate to the purposes of their office.

We believe that the case for public financ-ing is compelling when it comes to judicialelections. In our view, no judge should haveto rely on private donations to finance a bidfor office. The very act of raising money forone’s own campaign is antithetical to theprinciples of judicial independence andimpartiality. We therefore strongly endorsethe idea of publicly funded judicial elec-tions.

We would prefer a system of mandatory,full public financing for all judicial candi-dates. This approach, which would require allcandidates to rely only on public resources tofund their campaigns, is the optimal solutionto the problems we have identified. However,we recognize that the Supreme Court, in thecontext of presidential elections, and a num-ber of lower courts, in the context of stategubernatorial or legislative contests, haveheld that public funding systems must be vol-untary. Whether the Court would rule differ-ently in the case of judicial candidates, giventhe distinct nature of judicial office, is yet tobe determined. We believe that the characterof the judiciary is so substantially distinctfrom that of other elective offices that itwould be reasonable to reconsider currentdoctrine in the judicial context. We acknowl-edge, however, that until the Court rules oth-erwise, candidates cannot be mandated to usepublic funds. That is, candidates must beallowed to decide whether they want to relyon public funding or continue to run foroffice using private funding raised from cam-paign contributors.

Accordingly, we urge states to establish vol-untary programs of full public financing forjudicial elections. These programs should bemodeled on the full public funding systemsnow being used in Maine and Arizona for leg-islative and gubernatorial candidates. In thisapproach, qualified candidates who acceptpublic resources would receive a full subsidyequal to the amount of the spending limit

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applicable to candidates seeking a particularoffice (which in the case of the judiciary wouldbe the relevant level of court). Candidates whoaccept this subsidy would also have to agree toforego additional private fundraising andabide by campaign spending limits.

To qualify for public funding, candidateswould have to meet some pre-established eli-gibility criteria. The standard for eligibilityshould ensure an open and equitable system,without promoting frivolous or unqualifiedcandidates. For candidates in merit selectionstates who are running in a retention elec-tion, eligibility for public funding could bebased on a positive evaluation of the candi-date as determined by a state’s retention eval-uation commission (which is discussed at fur-ther length below). Candidates who receive arecommendation for retention would auto-matically be eligible for public funding.

In states that select candidates throughelections in the first instance, eligibility wouldhave to be determined by some other means.The public funding systems now operating insome states and localities usually require acandidate to demonstrate a certain level ofpublic support, either by raising a fixed num-ber of small contributions from individualdonors or by gathering a number of petitionsignatures from qualified voters. In our view,the petition requirement is to be preferred,since it obviates the need for any fundraisingon the part of judicial candidates. But a peti-tion requirement alone may not be an ade-quate safeguard against frivolous candidates.We would recommend that states also estab-lish some objective criteria to establish that acandidate is qualified for judicial office. Forexample, states should require that a judicialcandidate, especially in the case of trial andappellate courts, as well as a state’s highestcourt, have a law degree, be admitted to prac-tice before the court on which the candidateis seeking a judgeship, and be certified as acandidate in good standing by the appropri-ate bar organization. Candidates who fulfillthese basic eligibility criteria and acquire a

requisite number of petition signatures wouldbe eligible for public funding.

The amount of the subsidy would be estab-lished by a predetermined formula. It is essen-tial that the amount be sufficient to ensurethat participating candidates have theresources needed to wage a meaningful cam-paign. The experience with public fundingprograms now used in some states has demon-strated that the adequacy of the resources pro-vided to candidates is a key determinant oftheir willingness to participate in the program.If candidates perceive the amount of the sub-sidy to be inadequate, they will be less willingto accept public funding. We recommend alimit no lower than the average amount spentby candidates seeking a specific judicial seat inthe prior two election cycles.

One drawback to a voluntary program,which informs our preference for a compre-hensive public funding approach, is that itmay place participating candidates at a com-petitive disadvantage. A publicly-funded candi-date who is opposed by a privately-financedchallenger or by a challenger spending unlim-ited amounts of his or her own personal fundsmay face the prospect of being outspent bysubstantial margins, since a privately-fundedchallenger or self-financed challenger wouldnot be subject to spending limits. Candidatesanticipating a serious challenge from a privately-funded opponent might thus be discouraged from accepting the public fund-ing option. In order to minimize this incentivenot to participate, a public funding programshould provide supplemental resources forcandidates facing non-publicly funded oppo-nents. This additional subsidy would be basedon a non-publicly funded challenger’s level ofspending. Once that challenger has exceededthe spending limit established by the publicfunding program, the publicly-funded candi-date would receive supplemental funds on adollar-for-dollar matching basis up to a totalof twice the amount of the spending limit.This supplemental funding provision shouldalso be applied to independent expenditures

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made by interest groups against a publicly-funded candidate.

These matching provisions will help ensurethat public financing does not create a drasti-cally uneven playing field among the candi-dates, and thus help to encourage broad par-ticipation in the program. But this provisiondoes not entirely solve the strategic problem apublicly-funded candidate might face.Organized groups can still outspend a judicialcandidate by substantial amounts, since theyare not subject to spending limits. Similarly,privately-funded candidates or candidatesspending their own personal funds will beable to spend unlimited amounts. Thus, insome instances, the availability of public fund-ing might serve to increase the total amountspent in a given election, since it may stimu-late non-publicly-funded challengers orgroups to spend even more money in anattempt to outpace a publicly-funded oppo-nent. Consequently, voluntary public fundingoffers only a partial solution to the problemsof campaign spending.

We are aware that the costs of a publicfunding program will place a greater burdenon the budgets of state and local governments,which are already hard pressed to meet grow-ing public demands. However, we believe thatthe maintenance of an independent anduntarnished judiciary constitutes a public goodthat merits the expenditure of publicresources. We realize that the experience withpublic funding programs has demonstratedthat financing can be a major issue that canundermine the effectiveness of this approach.Some state legislatures, including most recentlythe Massachusetts legislature, have been unwill-ing to approve the resources needed to sustainpublic financing programs. In those instanceswhere a state cannot accommodate the costs ofa broad-scale public funding program for alljudicial candidates, we would recommend thatthey at least provide the funding needed tofinance the primary and general election campaigns of those seeking positions on thehighest courts and appellate courts. The

problem of guaranteeing adequate financing is another obstacle that must be overcome ifpublic funding is to be effective.

IMPROVING DISCLOSURE OFISSUE ADVOCACY CAMPAIGNS

Full, effective, timely public disclosure is anecessary component of any system of politicalfunding and a cornerstone of campaignfinance law. It is an essential safeguard againstcorruption or the appearance of corruption,since it ensures the transparency needed tosubject candidate finances to public scrutiny,as well as to ensure proper enforcement of thelaw. Disclosure also allows voters to makemore informed decisions by providing ameans of judging a candidate based on his orher sources of financial support.

Given the inadequate state of the currentdisclosure regulations applied to judicial can-didates, there is a pressing need for furtherregulation in this area. Many states do notmake comprehensive reports of the receiptsand expenditures of candidates readily avail-able to the public or prepare summary reportsof judicial campaign financing for public dis-tribution. Few post information on web sitesor provide electronic access to judicial cam-paign data. States need to review their disclo-sure statutes to ensure timely and readily avail-able public access to such information.

We further believe that members of thelegal profession have a responsibility to dis-close the financial assistance that they provideto judicial candidates. Attorneys and law firmsshould be required to disclose any direct orindirect contributions they make to judicialcandidates. These disclosures should bereported to the relevant state campaign orelections administrative agency, which woulddisseminate the information to the public in a suitable form. Placing the onus on members of the legal profession to assumeresponsibility for reporting both direct andindirect donations will ensure more effectivedisclosure and better safeguard the judicial

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system against potential conflicts of interest. Itwill also reduce the incentive to circumventdisclosure by means of donating funds to thirdparty groups or independent political commit-tees that support a candidate.

One of the most prominent changes thathas taken place in the financing of judicialelections is the rise of issue advocacy advertis-ing by organized groups in connection withspecific judicial contests. Because these adver-tisements and other types of communicationsdo not “expressly advocate” the election ordefeat of a specific candidate, as defined bythe courts, the monies spent on them do nothave to be disclosed under most state disclo-sure statutes. In order to ensure greater trans-parency of the monies spent in connectionwith judicial campaigns, these statutes shouldbe revised to include a narrowly tailored provi-sion to disclose the source of funding for anyads that are clearly intended to influence theoutcome of a judicial election, whether or notthe ads specifically call for the election ordefeat of a named candidate.

The states should adopt standards toensure that the monies raised and spent onissue advocacy advertising in connection withjudicial campaigns are fully disclosed to thepublic. State disclosure laws should set forthclear criteria for identifying public communi-cations that would be required to be disclosedunder election finance regulations. These cri-teria should include communications that: (1)refer to a clearly identified candidate for judi-cial office, or feature the image or likeness ofa clearly identified judicial candidate; (2) arebroadcast on television or radio, or distributedto voters through direct mail, non-broadcastadvertisements, or voter pamphlets; (3)achieve some threshold aggregate amount inexpenditures that would trigger disclosurerequirements; and (4) are broadcast or distrib-uted in close proximity to an election. Anycampaign communications that meet thesecriteria would have to be disclosed to the pub-lic. The disclosure requirement should

include the sources of funding and theamounts expended.

We recognize that this proposal may notwithstand judicial scrutiny. But given thenature of judicial elections and the potentialinfluence of such advertising campaigns onthe outcomes of judicial elections, we believethat these regulations are justified and thatthere is a compelling interest served by estab-lishing them. In the event that the approachwe have outlined is not upheld by the courts,we would support the most comprehensiveregime of disclosure permitted.

ESTABLISH JUDICIAL RETENTIONEVALUATION PROGRAMS ANDPUBLISH VOTER GUIDES

Most retention elections are less combativethan other types of judicial elections, becausethe candidate standing for retention faces noopponent. When a judge does face oppositionin a retention election, the debate is usuallyprovoked by an organized group that is chal-lenging the candidate on the basis of a singleissue or a decision rendered in a particularcase. Retention elections are therefore wagedon the basis of little or no information about a judge’s overall record or qualifications. Inmost instances, voters lack useful informationabout a judge’s performance in office, so theycast uninformed or undifferentiated ballots orfail to cast a vote at all in these contests. Thislack of information leaves candidates vulnera-ble to well-funded, single-issue oppositioncampaigns.76

We believe that states that employ meritselection systems and hold retention electionsto determine the continuing service of judgescould improve the election process by estab-lishing judicial retention evaluation programsto assess judicial performance. These pro-grams enhance the level of accountability inthe selection process by requiring a thoroughand objective assessment of a judge’s

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qualifications and performance in office.They also increase the amount of informationavailable to voters, thereby reducing the possi-bility of poorly informed voter decisions.

Six of the 19 states that hold retention elec-tions have created judicial retention evalua-tion programs. In 1976, Alaska became thefirst state to adopt such a program. In 1997,New Mexico became the most recent. Theothers are Arizona, Colorado, New Mexico,and Tennessee.77 These programs were devel-oped to respond to the need for voter infor-mation in retention elections.

The programs are based on a commonmodel. Each state has established a commis-sion responsible for evaluating candidates forretention. In most instances, commissionmembers are appointed by elective officialsand/or members of the judiciary, and arefunded by the legislature or the judicialbranch. For example, in Colorado, the ChiefJustice, the Governor, the Speaker of theHouse, and the President of the Senate eachappoint a lawyer and non-lawyer member ofthe commission. In Alaska, the board of gover-nors of the Alaska Bar Association appoint thelawyer members, the governor appoints non-lawyer members with the approval of the legis-lature, and the chief justice of the statesupreme court serves ex officio.

A retention evaluation commission isresponsible for measuring each judge’s perfor-mance, based on a variety of objective criteriaor performance standards that are establishedby law and are openly accessible to judges,evaluators, and the public. The commissionmay meet with the judge and collect data suchas caseload statistics, disposition records, disci-plinary sanctions, and other non-survey infor-mation. In addition, surveys of court users areconducted to solicit opinions of the judge.This information becomes the basis for a sum-mary of findings that includes a recommenda-tion for retention or notes a failure to meetperformance standards.

Evaluations by independent commissions

offer a valuable means of holding judgesaccountable for their behavior in office. Thisapproach is far less politicized or subjectivethan other alternatives such as a decisionmade solely by an appointing authority or anassessment based on information gathered ina typical election campaign. It is also morebeneficial for judges, since it provides clearcriteria and standards that offer guidelines forthe execution of their duties. Indeed, a veryhigh percentage of judges in states with theseprograms claim that the reports issued by thecommissions provide useful feedback on theirperformance. Moreover, nearly all judges con-sider it to be a fair process, and a majority feelthat it holds them appropriately accountablefor their job performance.78

Further, these evaluation programs haveproved to be a valuable means of improvingvoter knowledge of judicial candidates.Surveys of voters familiar with these evaluationreports in selected cities found that more than60 percent of voters felt that the official infor-mation distributed to the public from thesereports influenced their voting choices, andabout 67 percent said that the availability ofthe information made them “more likely tovote in a judicial election.”79

We therefore conclude that every state thatholds retention elections should establish eval-uation commissions and offer voters a recom-mendation on whether a judge should beretained. States should disseminate the con-tents of these evaluations widely by distribut-ing voter guides and other materials thatinclude this information. In this way, voterswill have access to independent, objectiveinformation about the candidates.

Voters in retention elections are not theonly citizens who would benefit from addition-al information about judicial candidates. Allstates that hold elections should publish voterguides that include information about judicialcandidates. We recommend that the office ofthe Secretary of State in each state compilebackground biographical information on judi-

31


cial candidates and candidate statements forinclusion in a voter guide that would be pub-lished at public expense and made widelyavailable to the public.

CONCLUSIONWhile the reforms we have suggested will

alleviate some of the problems associated withelections, they will not address our most fun-damental concerns. Candidates will still haveto compete in election campaigns in order to hold office and thus will continue to facepolitical pressures. The availability of publicfunding will ease the financial pressures many

candidates face, but will not put an end to privately-funded campaigns or to rising cam-paign expenditures, especially in those con-tests where one or more candidates eschewpublic funds. Interest groups will continue tomount extensive efforts to support or defeatparticular candidates. The most competitiveelections will still devolve into single-issue con-tests that polarize the electorate. In short, elec-toral reforms can only go so far in improvingjudicial selection. To fully address the prob-lems in most state judicial selection systems, amore comprehensive change is needed: theestablishment of selection by appointment inevery state.

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CED strongly believes that appointmentshould be the basic principle that governs theselection of all judges.

Appointment is the best method of ensur-ing judicial independence. It is the only selec-tion process that avoids the problems associat-ed with elections, since it is the only methodthat does not require judicial candidates or sitting judges to participate in some form ofpopular election to gain or retain office.Appointed judges do not need to solicit cam-paign contributions. They do not face theelectoral incentive to tailor their opinions tothe preferences of popular majorities. Nor do they need to be responsive to the pressuretactics of organized interests.

We further support appointment because itis the most inclusive and fair process of selec-tion. In elective systems, including merit-basedsystems that require retention elections, thepool of judicial candidates is necessarily limit-ed to those who are willing to run in an elec-tion. An appointive system promotes a widerpool of candidates, since any qualified individ-ual who expresses a willingness to serve maybe considered. Moreover, the assessment of anapplicant’s qualifications and capacities is con-ducted through a deliberative process less sub-ject to partisan or political influences thanthat which occurs in the context of a politicalcampaign. Appointment thus facilitates amore dispassionate and thorough review ofthe qualifications and abilities of judicial aspi-rants. Overall, it best guarantees a capable andeffective judiciary.

Generally, we support an appointive systemthat is based on a three-stage process. In the

first stage, a group of eligible judicial candi-dates would be determined. An independentjudicial nominating commission would recruitand review candidates for office and develop alist of potential nominees. In the second stage,vacancies would be filled by appointment. Inevery instance, an appointment would bemade by the appropriate authority as deter-mined by state law, which usually would be thegovernor, whose choice must be made fromthe list of candidates submitted by the judicialnominating commission. Each appointeewould serve for a limited term of office. At the end of each term, the third stage of theprocess would commence. An independentjudicial performance evaluation commissionwould conduct a comprehensive, objectivereview of a judge’s performance in office andprepare an evaluation report and a recom-mendation as to reappointment. The gover-nor or other appointing authority would thenbe responsible for making the decision toreappoint the judge or make a new appoint-ment.

In supporting selection by appointment,we recognize that this method will not alwaysfunction ideally. The appointment system canalso be affected by political and partisan con-cerns, as the recent experience in the selec-tion of federal judges demonstrates. However,this method is still to be preferred over elec-tive systems, where inappropriate politicalinfluences lurk in almost every case, and pub-lic perceptions of impropriety are becomingincreasingly pervasive. Furthermore, webelieve that appropriate safeguards are avail-able to minimize undue influence in the

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Chapter 4Improving Judicial Selection: A Call for Commission-Based Appointment

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appointments process. This is an importantreason why we support the use of nominatingcommissions to assess the qualifications ofjudicial candidates, in addition to other inde-pendent bodies to perform periodic reviewsand evaluations of sitting judges.

ESTABLISH JUDICIALNOMINATING COMMISSIONS

Appointive systems present a risk to judicialindependence primarily when appointment isleft to the discretion of a single authority, as inthe case of vacancy appointments in moststates, where the interim position is usuallyfilled by an appointee selected by the state’sgovernor. In these instances, chief executiveswith sole authority to appoint a judge, or withauthority to nominate and appoint a judgesubject only to legislative approval, are free todetermine the criteria they will use to make aselection. They typically select a political sup-porter, or only consider potential nomineesfrom their political party in hopes of placingan “ally” on the bench. Frequently, they relyon recommendations from local party officialsin making these appointments, thereby associ-ating judgeships with a form of politicalpatronage.80

Many states have addressed this problem byestablishing nonpartisan, independent judicialnominating commissions as part of theirappointment process. At present, 24 states andthe District of Columbia use a commission-based appointment plan for the initial selec-tion of some or all levels of the judiciary, andan additional ten states use a similar plan, butonly to fill midterm vacancies.81 While the pro-visions of state law vary, these commissionsgenerally are permanent, nonpartisan boardscomprised of lawyers, non-lawyers, and insome states, ex-officio judges. Most states setterms of four or six years for commissionmembership. To ensure the independenceand nonpartisanship of these bodies, manystates divide the responsibility for selectingmembers among a number of authorities,

including the governor, the legislature, members of the state’s highest court, and bar association officers.

These judicial nominating commissions are responsible for recruiting, assessing, andscreening potential candidates for judicialvacancies. When a judicial vacancy arises, thecommission submits a list of prospective nomi-nees, usually consisting of three to five candi-dates, to the appropriate appointing authority,which is typically the governor of the state.The governor is then generally bound by lawto make a final selection from the nomineesincluded on the list.82

These commissions have received positiveassessments from those involved in theappointment process. In a survey conductedby the American Judicature Society in 1991,governors in states with merit selection plansthat include nominating commissionsexpressed favorable views of the system, notingthat this approach focuses selection on themerits of the candidates themselves. At thattime, these governors agreed that commission-based appointments minimize partisan politi-cal considerations, provide high quality nomi-nees, and broaden the pool of applicants.83

This view of the quality of commission-based nominees is shared by the chairs ofthese commissions. According to a survey conducted by the American Bar Foundation,89 percent of the commissioners report beingsatisfied either “always” or “in the majority of cases” with the quality of the candidatesthey were able to pass along to appointingauthorities.84

We consider a judicial nominating commis-sion to be an essential component of anyappointment-based selection process. Wetherefore recommend that all judges in statecourt systems be selected through a commis-sion-based appointment process. An indepen-dent, nonpartisan, broadly based nominatingcommission provides a necessary element ofpre-selection review that serves to insulate the appointment process from political influ-ence. Moreover, it promotes the independent

selection of capable and qualified judicial can-didates, which is a necessary component of animpartial and effective judicial system.

In making this recommendation, we joinwith those, particularly the American BarAssociation and the American JudicatureSociety, who have long supported this notion.†

These organizations have developed detailedguidelines and models for the establishmentof judicial nominating commissions.85 We urgestate officials to review these standards inestablishing nominating commissions for theirstates.

With respect to this recommendation, wewould further note a number of basic featuresessential to a properly functioning nominatingprocess. First and foremost, the commissionmust be able to act independently. It must befree to recruit, review, and recommend candi-dates without being subject to partisan orpolitical pressures. We therefore support com-missions consisting of a mixture of lawyers,non-lawyers, and ex-officio judges who servefixed terms of office. The responsibility forselecting members should be divided amongdiverse appointing authorities, including thegovernor, the legislature, members of thestate’s highest court, and bar association officers.

Nominating commissions also must oper-ate through open and regular procedures thatencourage applications from and considera-tion of the widest possible pool of candidates.Commissions should be charged with theresponsibility of actively recruiting highly-qualified candidates in order to strengthentheir available choices. In screening these can-didates, they should rely on a broad range ofcriteria in order to ensure a thorough and fairassessment of the relative merits of judicialaspirants.

It is also necessary for state judicial selec-tion systems to specify that the governor (orother appointing authority under statestatute) is required to draw judicial nomineesfrom the list of candidates provided by nomi-nating commissions. Absent such a provision,nominating commissions may become merelyadvisory bodies, which would diminish theirvalue.

Finally, in order to ensure a timely and effi-cient selection process, nominating commis-sions should be required to submit candidatesin a timely manner when a position becomesopen. The vast majority of states that now usenominating commissions impose time limits,in most cases from 30 to 60 days, that encour-age the body to act quickly in recommendingindividuals to fill a vacancy.86 This restrictionhelps to avoid situations where a vacancy is leftunfilled for a lengthy period of time.

Require Periodic Review and Evaluation

An appointment-based selection processmust include a periodic review of the perfor-mance of judges at regular intervals.Accordingly, judges should be appointed forterms of fixed length, with eligibility to bereappointed. The length of the terms estab-lished should be appropriate to the level ofthe court. With respect to the highest courts,we suggest a minimum term of ten years. Theterms of members of the highest courts alsoshould be staggered to ensure reasonable con-tinuity.

Most states that use some form of appoint-ment, whether it be entirely or in the firstinstance, limit the length of terms of office,even on the court of last resort. Only threestates do not follow this practice.‡ Terms offixed length provide appointing authorities

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Improving Judicial Selection: A Call for Commission-Based Appointment

† The American Judicature Society has supported the use ofjudicial nominating commissions since 1913 and theAmericaan Bar Association has endorsed the use of judicialnominating commissions in merit selection systems since1937.

‡ In Rhode Island, justices on the high court serve life terms.In Massachusetts and New Hampshire, justices are allowed toserve until age 70.

with a pre-determined opportunity to assessthe performance of judges and decidewhether they should continue to hold theirpositions.

At the time of a judge’s reappointment,state authorities should be required to carryout a careful and thorough review of thatjudge’s performance. The findings of thisreview should be given due consideration in making a reappointment decision. To facilitate this process, we recommend that each state establish a judicial performanceevaluation committee to review the perfor-mance of judges and make a public recom-mendation as to whether a judge should bereappointed. These performance evaluationcommissions should be modeled on the judi-cial retention evaluation programs describedin our previous discussion of electionreforms.

In the case of retention elections, the per-formance reports of judicial evaluation com-missions are made available to voters for theiruse in making voting decisions. But the modelcould easily be adapted to an appointment sys-tem. In this regard the findings would be usedas a basis for a recommendation for or againstreappointment. The commission would con-duct a comprehensive review of a judge’s per-formance in office and submit a report to agovernor (or other appointing authority, asdictated by state law). This evaluation wouldprovide a source of independent and objectiveinformation that would enhance deliberationson reappointment decisions. To preservegubernatorial discretion, the commission’srecommendation on reappointment shouldnot be binding, although we expect that thecommission’s guidance would be followed inmost cases. The same process of evaluation bya judicial performance commission would takeplace at the completion of each subsequentterm for each judge.

Judicial performance evaluation commis-sions ensure accountability in the selectionprocess. This type of assessment holds judgesresponsible for their overall performance,

including their management of caseloads,behavior towards all those who appear beforethem, and rates of reversal on appeal. Theyalso encourage civic involvement in theprocess, not only by including citizens as com-mission members, but also by soliciting publiccomment on judges’ performance. For exam-ple, in Alaska, Arizona, and Colorado, theevaluation commission review includes surveysof attorneys and others who participate incourt proceedings, information gathered atpublic hearings, or written public comments(see Table 2). Moreover, it provides judgeswith the information needed to help themimprove their performance and address areasof concern. Indeed, judges have found suchreviews to be as useful as voters do, especiallyin those states that conduct confidentialmidterm evaluations that are intended for ajudge’s self-improvement.87 We believe thatsuch midterm evaluations add significantvalue in making judges accountable for theiractions. We therefore strongly recommendthat they be included in any program of per-formance evaluation.

Ensure Adequate CompensationThe efficacy of a commission-based

appointment system depends on having abroad pool of qualified individuals who arewilling to serve as judges. Although the vastmajority of those who seek judgeships act outof a desire to serve their communities andtheir profession, the level of compensationcan be a disincentive for highly-qualified indi-viduals to act on their desires. Most of thosewho serve as nominating commission chairsreport that a low level of compensation, asperceived by potential judicial nominees, is animportant factor in discouraging individualsfrom agreeing to be considered for vacantjudgeships. The only other major deterrent isthe desire of potential candidates to continueto practice law.88 This decision may also reflectthe relatively low compensation presentlyoffered to state court judges.

The compensation provided to state court

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Table 2

Model Judicial Evaluation Procedures

Alaska Arizona Colorado Utah

Groups Alaska Bar Lawyers, litigants, Jurors, litigants, Attorneys; jurysurveyed members; peace witnesses, jurors, court personnel, surveys began

and probation other judges/justices, probation officers, in 1997officers who handle staff social service andcriminal cases; court law enforcementstaff; jurors for last personnel, crime2 years of term victims, attorneys

Nonsurvey Judge’s self-evaluation; Judge’s previous self- Caseload evaluation; Compliance withsources of legal, discipline, or evaluations and interview with the judge cases-under-information health records; attorneys professional goals advisement standard;

in 9-12 major cases physical and mentalhandled by judge; competence; judicial conduct completion of 30 commission; conflict hours continuing of interest filings; other education per year; case information in substantial compli-

ance with Code of Judicial Conduct andCode of Judicial Administration

Public input Hearings, newspaper ads Public hearings; requests Public hearings Noand PSAs encourage for public comment authorized in 1997;public comment in writing public comments in

writing

Judge Council “may” interview; Factual report must be Yes, after receiving Judge may requestinterview draft results shared with sent to judge; judge can analysis of questionnaire interview if he ormandatory? judge prior to final submit written response; results she fails to meet

evaluation meeting conference team certificationinterviews standards

SOURCE: Kevin M. Esterling, “Judicial Accountability the Right Way,” Judicature, vol. 82, no. 5 (1999), p. 209.

judges should not be so low that it discourageswell-qualified individuals from seeking judge-ships. According to a 2001 survey by theNational Center for State Courts, annualsalaries of associate justices of the highest statecourts range from about $89,400 to $162,400,with a median of $116,500. Salaries of judgesof general jurisdiction trial courts range fromabout $81,600 to $137,200, with a median of$113,000.89 These ranges fall well below thesalaries earned by attorneys at many law firms.Accordingly, as a corollary to our call for commission-based appointment systems, weurge state officials to ensure that appropriatelevels of compensation are provided to judges

at all levels. This will enhance the efficacy ofthe judicial selection process by encouraging alarger number of highly qualified individualsto enter the nominating process.

MERIT SELECTION AS AN ALTERNATIVE

We acknowledge that most states will find itpolitically impracticable to move to a commis-sion-based appointment system any time soon.A fully appointed judiciary requires a funda-mental transformation of the judiciaries inmost states. In many of these states, thischange demands a shift away from a widely

37


accepted practice deeply embedded in thestate’s political culture. For those states thatdo not adopt an appointive system, we preferthe use of merit selection as an alternative toselection by popular vote.

We regard appointment as the groundingprinciple of judicial selection. We prefer meritselection systems because they have the virtueof appointing judges in the first instance. Andthe retention elections that are employed inthese systems pose less of a threat to judicialindependence than other types of judicialelections. Retention elections do not require acandidate to face an opponent, so they tendto be less contentious and less expensive. Theyare usually low visibility elections. They rarelylead to the removal of an appointed judge.

However, merit selection systems still havethe drawback that they do not eliminate theproblems associated with elections. Contestedretention contests can become just as combat-ive, expensive, and politicized as competitiveraces between opposing candidates. They canbe a focal point of interest group electioneer-ing. And they usually devolve into a debateover a single policy issue or, in the worst cases,a single judicial decision.

States that now rely on merit selection sys-tems to choose judges, as well as those statesthat move to this method in the future, shouldensure that their systems incorporate safe-guards to enhance the continuing indepen-dence and quality of their judiciaries.Specifically, we urge states to follow the modelthat we have outlined in our call for anappointive system. States that do not currentlyuse nominating commissions to identifypotential judicial nominees should establish acommission and require that the appointingauthority select a candidate from its list ofnominees. Commission-based nominationsshould be used to fill interim vacancies, as wellas appointments in the first instance. Further,we recommend that states establish judicialretention evaluation programs to assess candi-dates running in retention elections. As notedpreviously in our discussion, we feel that this

approach will give voters access to indepen-dent, objective information about the candi-dates, which will promote more informed vot-ing decisions.

CONCLUSIONCourt decisions affect many aspects of

American life. They determine the scope ofcitizens’ liberties, the substantive legal rulesgoverning everyday transactions, the nature ofthe products available in the marketplace, andthe caliber of our system of justice. Statecourts, in particular, are responsible for inter-preting and enforcing common law doctrinesthat, unless modified by statute, determine thelegal responsibilities for the harms associatedwith a wide variety of products, actions, andsocial risks that citizens may encounter intheir daily lives. In essence, they define whatconstitutes appropriate legal protection in oursociety.

Given the vital role of courts, citizens musthave confidence in the integrity and impartial-ity of the judicial process. The courts must beaccepted as a credible forum for resolvinglegal disputes. Those who appear before themmust have faith that they will receive a fairhearing before a judge whose discretion andjudgment will not be skewed by influencesoutside of the law. Such confidence is essentialto the effective rule of law.

The current patchwork of diverse methodsof judicial selection does not fulfill the needfor an impartial and independent system ofjustice. The threat to our judicial system thatstems from the manner in which judges areselected in 39 of the states is real and growing.As more races become partisan battlesbetween conflicting economic interests orpolitical parties, respect for the system willcontinue to erode.

There is a comparable threat to federal-ism. Recall the chilling words of the judgewho warned that it is all too easy for a courtand a jury to punish an out-of-state defen-dant economically to benefit local residents.

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One study of 75,000 tort decisions fromacross the states has found that jury awardsagainst out-of-state defendants are substan-tially larger than awards against in-statedefendants.90 Such outcomes are to beexpected when judges are subject to political and electoral pressures.

We cannot be optimistic about our abilityto remedy the problem. The task of seekingsubstantial reform in most states is daunting.Success will require even greater public support than that which secured campaignfinance reform at the federal level after many years of effort.

An alternative that might resolve some of the problems we have raised would be toexpand the diversity jurisdiction of our federalcourts. There is some precedent for this alternative, which would require an Act ofCongress. Congress might enact a minimumstandard for state judicial selection that could,for example, restrict judicial selection to reten-tion elections that are publicly funded. In any

state that did not meet that minimum stan-dard, an out-of-state defendant would have agreatly expanded right to remove the case tofederal court on diversity grounds.

Whether this approach or some otherproves feasible is beyond the scope of thispaper. But it merits consideration in futurediscussions of the problems associated withjudicial elections.

CED believes that there is a compellingneed for a broad public dialogue on the prob-lems of judicial selection. We offer this reportin an effort to promote such a dialogue andthereby stimulate a thoughtful and wide-rang-ing debate about the best means of ensuring aqualified, independent, and accountable judi-ciary. We have offered recommendations thatset forth a direction for reform that we feelbest conforms to the principled role ournation expects of its judicial system. We hopethat our efforts will encourage additional sug-gestions for guaranteeing the impartial admin-istration of justice for all Americans.

39


1. Roy A. Schotland, “Financing Judicial Elections,” in DavidB. Magleby, ed., Financing the 2000 Elections (Washington,D.C.: The Brookings Institution, 2002), p.214.

2. The Constitution Project, Uncertain Justice (New York, NY:The Century Foundation Press, 2000), p. 89.

3. Schotland, “Financing Judicial Elections,” p. 214.

4. According to the National Conference of State Legislators,there were 7,424 state legislators in 2002. See NationalConference of State Legislators, 2002 Partisan Composition of State Legislatures, (March 2002), available at <http://www.ncsl.org/ncsldb/elect98/partcomp.cfm?yearsel=2002>.

5. American Judicature Society, Judicial Selection in the States,(April 2002), available at <http://www.ajs.org/js/Jud%20Sel%20Chart%20-%20Apr%202002.pdf>.

6. Richard A. Dove, “Judicial Campaign Conduct: Rules,Education, and Enforcement,” (paper presented at theSummit on Improving Judicial Selection, Chicago, IL,December 8-9, 2000).

7. Warren Richey and Liz Marlantes, “Judge Candidates MaySpeak Freely,” Christian Science Monitor, June 28, 2002, p. 3;and Republican Party of Minnesota v. White, 536 U.S. 2 (2002).

8. See, among others, Federalist Paper No. 78.

9. Steven P. Croley, “The Majoritarian Difficulty: ElectiveJudiciaries and the Rule of Law,” Chicago Law Review, vol. 62,no. 2 (1995), pp. 714-725.

10. Croley, “The Majoritarian Difficulty,” p. 723.

11. See, for example, Roscoe Pound, “The Causes of PopularDissatisfaction with the Administration of Justice,” BaylorLaw Review, vol. 8, no. 1 (1956), pp. 1-25.


13. Roy A. Schotland, “Comment,” Law and ContemporaryProblems, vol. 61, no. 3 (1998), pp. 154-155.

14. John Gibeaut, “Bench Battle,” ABA Journal, vol. 86, no. 8(2000), p. 43.

15. Deborah Goldberg, Craig Holman, and SamanthaSanchez, The New Politics of Judicial Elections (New York, NY:Brennan Center for Justice and National Institute onMoney in State Politics, 2002), p. 7.

16. Robert L. Dudley, “Turnover and Tenure on State HighCourts: Does Method of Selection Make a Difference?” The Justice System Journal, vol. 19, no. 1 (1997), pp. 1-16.

17. Larry Aspin, “Trends in Judicial Retention Elections, 1964-1998,” Judicature, vol. 83, no. 2 (1999), p. 81.


19. Aspin, “Trends in Judicial Retention Elections,” p. 81.

20. American Bar Association, Task Force on Lawyer’s PoliticalContributions, Report and Recommendations of the Task Forceon Lawyer’s Political Contributions, Part II (Washington, D.C.:American Bar Association, 1998), pp. 13-14; and Roy A.Schotland, “Elective Judges’ Campaign Financing: AreState Judges’ Robes the Emperor’s Clothes of AmericanDemocracy?” Journal of Law and Politics, vol. 2, no. 1(1985), pp. 57-167.

21. Schotland, “Elective Judges’ Campaign Financing,” p. 59.




25. Anthony Champagne, “Interest Groups and JudicialElections,” (paper presented at the Summit on ImprovingJudicial Selection, Chicago, IL, December 8-9, 2000).

26. L. Douglas Kiel, Carole Funk, and Anthony Champagne,“Two-Party Competition and Trial Court Elections inTexas,” Judicature, vol. 77, no. 6 (1994), pp. 290-293.

27. Owen G. Abbe and Paul S. Herrnson, “Public Financingfor Elections? A Judicious Perspective on the ABA’sProposal for Campaign Finance Reform” (draft, Center for American Politics and Citizenship, College Park, MD,May 2002).

28. Abbe and Herrnson, “Public Financing for Elections?”; andSchotland, “Financing Judicial Elections,” pp. 221-222.

29. Owen G. Abbe and Paul S. Herrnson, “How JudicialElection Campaigns Have Changed,” Judicature, vol. 85, no. 6 (2002), pp. 286-295.

30. Kyle Cheek and Anthony Champagne, “Money in TexasSupreme Court Elections,” Judicature, vol. 84, no. 1 (2000),p. 22.

31. Champagne, “Interest Groups and Judicial Elections.”

32. Charles Gardner Geyh, “Publicly Financed JudicialElections: An Overview,” (paper presented at the Summiton Improving Judicial Selection, Chicago, IL, December 8-9, 2000).

33. American Bar Association, Standing Committee on JudicialIndependence, Report of the Commission on Public Financingof Judicial Campaigns (Washington, D.C.: American BarAssociation, 2001), p. 10.



36. Goldberg, Holman, and Sanchez, The New Politics of JudicialElections, p. 8.

37. Goldberg, Holman, and Sanchez, The New Politics of JudicialElections, pp. 1-2.

38. Goldberg, Holman, and Sanchez, The New Politics of JudicialElections, pp. 10-14.

40

Endnotes


40. Abbe and Herrnson, “Public Financing for Elections?”


42. James Eisenstein, “Financing Pennsylvania’s SupremeCourt Candidates,” Judicature, vol. 84, no. 1 (2000), p. 15.

43. Texans for Public Justice, Checks & Imbalances, (April2000), available at<http://www.tpj.org/reports/checks/toc.html>.

44. Ohio Citizen Action, 1993-1998 Campaign Contributions to Justices of the Ohio Supreme Court, (February 7, 2000), available at <http://www.ohiocitizen.org/moneypolitics/judgestudy.html>.

45. American Bar Association, Report of the Commission on PublicFinancing, p. 14.

46. Paul Carrington, “Judicial Independence and DemocraticAccountability in Highest State Courts,” Law andContemporary Problems, vol. 61, no. 3 (1998), pp. 105-106.

47. Dove, “Judicial Campaign Conduct.”



50. Kenneth P. Doyle, “Judicial Campaign Trend SeenHeading Toward Nastier, More Expensive Battles,” BNAMoney and Politics Report, April 19, 2001, p. 1.



53. Goldberg, Holman, and Sanchez, The New Politics of JudicialElections, p. 16; and Abbe and Herrnson, “Public Financingfor Elections?”

54. Abbe and Herrnson, “Public Financing for Elections?”



57. Eric Helland and Alexander Tabarrok, “Exporting TortAwards,” Regulation, vol. 23, no. 2 (2000), p. 22.

58. Croley, “The Majoritarian Difficulty,” p. 694.

59. John Cornyn, “Commentaries: Ruminations on the Natureof Texas Judging,” St. Mary’s Law Journal, vol. 25, no. 1(1993), p. 378.

60. Richard Neely, The Product Liability Mess (New York, NY:The Free Press, 1988), p. 62.

61. Paul Brace and Melinda Gann Hall, “Integrated Models ofJudicial Behavior,” Journal of Politics, vol. 55, no. 3 (1993),pp. 914-935; and Melinda Gann Hall, “Electoral Politicsand Strategic Voting in State Supreme Courts,” Journal ofPolitics, vol. 54, no. 2 (1992), pp. 427-446.

62. Melinda Gann Hall, “Justices as Representatives: Electionsand Judicial Politics in the American States,” AmericanPolitics Quarterly, vol. 23, no. 4 (1995), p. 498.

63. Stephen J. Ware, “Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama,” Journal ofLaw and Politics, vol. 15, no. 4 (1999), p. 684.

64. Ware, “Money, Politics and Judicial Decisions,” p. 684.

65. Samantha Sanchez, Campaign Contributions and theWisconsin Supreme Court, (May 2001), available at<http://www.followthemoney.org/reports/wi/20010509/WI.phtml>.

66. National Center for State Courts, How the Public Views theState Courts: A 1999 National Survey, (May 14, 1999), avail-able at <http://www.ncsc.dni.us/PTC/results/results.pdf>.

67. American Bar Association, Report of the Commission on PublicFinancing, p. 22.

68. David B. Koch, Futures Trading in Judicial Elections, (June2000), available at <http://www.wsba.org/barnews/2000/06/koch.htm>.

69. Pennsylvania Commission to Limit CampaignExpenditures, Banners from a Survey of 500 Registered Votersin the State of Pennsylvania, (June 12-14, 1998), available at <http://www.courts.state.pa.us/Index/Supreme/appenda.pdf>.

70. State Bar of Texas, Public Trust and Confidence in the Courtsand the Legal Profession in Texas: Summary Report, (December1998), available at <http://www.texasbar.com/members/buildpractice/research/trust99.pdf>; and State Bar ofTexas, The Courts and the Legal Profession in Texas The Insider’s Perspective, (May 1999), available at<http://www.texasbar.com/members/ buildpractice/research/insider.pdf>.


72. Croley, “The Majoritarian Difficulty,” p. 691, n3.

73. Buckley v. Valeo, 424 U.S. 1 (1976).

74. Abbe and Herrnson, “How Judicial Election CampaignsHave Changed.”

75. Buckley v. Valeo, 424 U.S. 1 (1976).

76. Kevin M. Esterling, “Judicial Accountability the Right Way,”Judicature, vol. 82, no. 5 (1999), p. 208.

77. Seth S. Andersen, “Judicial Retention EvaluationPrograms,” Loyola of Los Angeles Law Review, vol. 34, no. 4(2001), p. 1375.

78. Kevin M. Esterling and Kathleen M. Sampson, JudicialRetention Evaluation Programs in Four States (Chicago, IL:American Judicature Society, 1998), pp. 42-47.

79. Esterling, “Judicial Accountability the Right Way,” p. 210.

80. The Constitution Project, Uncertain Justice, p. 92.


82. See Joanne Martin, Merit Selection Commissions: What DoThey Do? How Effective Are They? (Chicago, IL: American BarAssociation, 1993); and American Bar Association StandingCommittee on Judicial Independence, Standards on StateJudicial Selection (Chicago, IL: American Bar Association,July 2000), pp. 12-14.

41

Endnotes

42

JUSTICE FOR HIRE


84. Martin, Merit Selection Commissions, p. 2.

85. See American Bar Association Standing Committee onJudicial Independence, Standards on State Judicial Selection;American Judicature Society, Model Judicial SelectionProvisions (Chicago, IL: American Judicature Society, 1985,Revised 1994); and Marla N. Greenstein, Handbook forJudicial Nominating Commissioners (Chicago, IL: AmericanJudicature Society, 1984).

86. Martin, Merit Selection Commissions, p. 8.

87. Esterling, “Judicial Accountability the Right Way,” p. 212.

88. Esterling, “Judicial Accountability the Right Way.”

89. National Center for State Courts, Survey of Judicial Salaries,vol. 26, no. 2 (2001), p. 1.

90. Eric Helland and Alexander Tabarrok, The Effect of ElectoralInstitutions on Tort Awards, Working Paper No. 1, (Oakland,CA: Independent Institute, September 1999).

Appendix:Judicial Selection in the States

APPELLATE AND GENERAL JURISDICTION COURTS

2002

APPOINTIVE ELECTIVESYSTEMS SYSTEMS

MeritSelection Appointment INITIALThrough without Non- TERM OFNominating Nominating Partisan Partisan OFFICE

STATE AND COURT Commission Commission Election Election (YEARS) METHOD OF RETENTION

ALABAMA

Supreme Court X 6 Re-election for additional terms

Court of Civil Appeals X 6 Re-election for additional terms

Court of Criminal Appeals X 6 Re-election for additional terms

Circuit Court X 6 Re-election for additional terms

ALASKA

Supreme Court X 3 Retention election (10 year term)

Court of Appeals X 3 Retention election (8 year term)

Superior Court X 3 Retention election (6 year term)

ARIZONA



Superior Court (Countypopulation > 250,000) X 2 Retention election (4 yearterm)

Superior Court (Countypopulation < 250,000) X 4 Re-election for additional terms

ARKANSAS


Court of Appeals X 8 Re-election for additional terms


CALIFORNIA

Supreme Court X(G)1 12 Retention election (12 year term)

Courts of Appeal X(G) 12 Retention election (12 year term)

Superior Court2 X 6 Nonpartisan election (6 year term)

43

1. Gubernatorial (G) or Legislative (L)2. The California constitution provides that local electors may choose gubernatorial appointments instead of nonpartisan election to select

superior court judges. As of July 1999, no counties have chosen gubernatorial appointments.

COLORADO



District Court X 2 Retention election (6 year term)

CONNECTICUT

Supreme Court X 8 Commission reviews incumbent’s performance on noncompetitive basis; governor renominatesand legislature confirms.

Appellate Court X 8 Same

Superior Court X 8 Same

DELAWARE3

Supreme Court X 12 See footnote4

Court of Chancery X 12 See footnote4

Superior Court X 12 See footnote4

DISTRICT OF COLUMBIA

Court of Appeals X 15 Reappointment by judicial tenure commission5

Superior Court X 15 Reappointment by judicial tenure commission5

FLORIDA


District Court of Appeal X 1 Retention election (6 year term)


GEORGIA



Superior Court X 4 Re-election for additional terms

44

JUSTICE FOR HIRE




3. Merit selection established by executive order in Delaware, Maryland, Massachusetts, and New Hampshire. In all other jurisdictions meritselection is established by constitutional or statutory provision.

4. Incumbent reapplies to nominating commission and competes with other applicants for nomination to the governor. The governor mayreappoint the incumbent or another nominee. The Senate confirms the appointment.

5. Initial appointment is made by the President of the United States and confirmed by the Senate. Three months prior to the expiration of theterm of office, the judge’s performance is reviewed by the tenure commission. Those found “Exceptionally Well Qualified” or “WellQualified” are automatically reappointed. If a judge is found to be “Qualified” the President may nominate the judge for an additional term(subject to Senate confirmation). If the President does not wish to reappoint the judge, the District of Columbia Nomination Commissioncompiles a new list of candidates.

HAWAII

Supreme Court X 10 Reappointment to subsequent term by Judicial Selection Commission (10 year term)

Intermediate Courtof Appeals X 10 Same

Circuit Court and Family Court X 10 Same

IDAHO


Courts of Appeals X 6 Re-election for additional terms

District Courts X 4 Re-election for additional terms

ILLINOIS


Appellate Court X 10 Retention election (10 year term)

Circuit Court X 6 Retention election (6 year term)

INDIANA




Circuit Court (Vanderburgh County) X 6 Re-election for additional terms


Superior Court(Allen County) X 6 Re-election for additional terms

Superior Court(Lake County) X6 2 Retention election (6 year term)

Superior Court(St. Joseph County) X 2 Retention election (6 year term)

Superior Court(Vanderburgh County) X 6 Re-election for additional terms

IOWA




45

Appendix




6. Three of the judges run in partisan elections for 6 year terms then have to be re-elected for additional terms.

KANSAS



District Court(17 districts) X 1 Retention election (4 year term)

District Court(14 districts) X 4 Re-election for additional terms

KENTUCKY




LOUISIANA

Supreme Court X7 10 Re-election for additional terms

Court of Appeals X7 10 Re-election for additional terms

District Court X7 6 Re-election for additional terms

MAINE

Supreme Judicial Court X(G) 7 Reappointment by governor, subject to legislative confirmation

Superior Court X(G) 7 Same

MARYLAND8

Court of Appeals X see fn9 Retention election (10 year term)

Court of Special Appeals X see fn9 Retention election (10 year term)

Circuit Court X see fn9 Nonpartisan election (15 year term)10

MASSACHUSETTS11

Supreme Judicial Court X to age 70

Appeals Court X to age 70

Trial Court of Mass. X to age 70

46

JUSTICE FOR HIRE




7. Louisiana judicial elections are partisan in as much as the candidates’ party affiliations appear on the ballot. However, two factors lend a somewhat nonpartisan character to these elections: (1) primaries are open to all candidates; and (2) judicial candidates generally do notsolicit party support for their campaigns.

8. See Delaware, footnote 3.9. Until the first general election following the expiration of one year from the date of the occurrence of the vacancy.

10. May be challenged by other candidates.

11. See Delaware, footnote 3.

MICHIGAN12




MINNESOTA



District Court X 6 Re-election for additional terms

MISSISSIPPI



Chancery Court X 4 Re-election for additional terms


MISSOURI




Circuit Court (Jackson,Clay, Platte, Saint Louis Counties) X 1 Retention election (6 year term)

MONTANA

Supreme Court X 8 Re-election; unopposed judges run for retention

District Court X 6 Re-election; unopposed judgesrun for retention

NEBRASKA




NEVADA



47

Appendix




12. On the Michigan ballot, party affiliation does not appear beside the names of judicial candidates. In this way, the system is technically nonpartisan. However, candidates are nominated from party conventions, and frequently run with party endorsements. This system fornominating candidates in Michigan coupled with recent general election campaigns, reveals that, in substance if not in law, the character ofMichigan’s selection system is in fact highly partisan.

NEW HAMPSHIRE13

Supreme Court X14 to age 70

Superior Court X14 to age 70

NEW JERSEY

Supreme Court X(G) 7 Reappointment by governor (toage 70) with advice and consent of the Senate

Appellate Division of Superior Court X(G) 7 Same

Superior Court X(G) 7 Same

NEW MEXICO

Supreme Court X Until next See footnote15

generalelection

Court of Appeals X Until next See footnote15

generalelection

District Court X Until next See footnote15

generalelection

NEW YORK

Court of Appeals X 14 See footnote16

Appellate Division of the Supreme Court X 5 Commission reviews and

recommends for or againstreappointment by the Governor


County Court X 10 Re-election for additional terms

NORTH CAROLINA




48

JUSTICE FOR HIRE




13. See Delaware, footnote 3.14. The Governor’s nomination is subject to the approval of a five-member executive council.

15. Partisan election at next general election after appointment for eight-year term for appellate judges, six-year term for district. The winnerthereafter runs in a retention election for subsequent terms.

16. Incumbent reapplies to nominating commission and competes with other applicants for nomination to the governor. The governor mayreappoint the incumbent or another nominee. The Senate confirms the appointment.

NORTH DAKOTA



OHIO17



Court of Common Pleas X 6 Re-election for additional terms

OKLAHOMA


Court of CriminalAppeals X 1 Retention election (6 year term)



OREGON




Tax Court X 6 Re-election for additional terms

PENNSYLVANIA


Superior Court X 10 Retention election (10 year term)

Commonwealth Court X 10 Retention election (10 year term)

Court of Common Pleas X 10 Retention election (10 year term)

RHODE ISLAND

Supreme Court X Life

Superior Court X Life

Worker’s CompensationCourt X Life

49

Appendix




17. Ohio general elections do no list party affiliations on the ballot. Candidates, however, must run in partisan primary elections and frequentlyrun with party endorsements. Recent elections for the Ohio Supreme Court reveal a pattern of partisan elections in substance if not in law.

SOUTH CAROLINA18

Supreme Court X(L) 10 Reappointment by legislature

Court of Appeals X(L) 6 Reappointment by legislature

Circuit Court X(L) 6 Reappointment by legislature

SOUTH DAKOTA



TENNESSEE

Supreme Court X See fn19 Retention election (8 year term)

Court of Appeals X See fn19 Retention election (8 year term)

Court of Criminal Appeals X See fn19 Retention election (8 year term)

Chancery Court X 8 Re-election for additional terms

Criminal Court X 8 Re-election for additional terms


TEXAS


Court of Criminal Appeals X 6 Re-election for additional terms



UTAH

Supreme Court X First Retention election (10 year term)

Court of Appeals X general Retention election (6 year term)

District Court X election Retention election (6 year term)

Juvenile Court X >3 years Retention election (6 year term)

after

appointment

50

JUSTICE FOR HIRE




18. South Carolina has an 11 member Judicial Merit Selection Commission that screens judicial candidates and reports the findings to thestate’s General Assembly. Since 1997, the Assembly is restricted to voting only on those candidates found qualified by the Judicial MeritSelection Commission. However, the nominating commission itself is not far removed from the ultimate appointing body, and cannot beconsidered to be nonpartisan as control over member nominations is vested in majority party leadership. Although most nominating com-missions contain members appointed by the governor or legislature, no other commissions actually contain the governor or current legisla-tors who have final approval over the candidates as voting members of the commission. In contrast, the Judicial Merit Selection Commissionin South Carolina contains 6 current members of the General Assembly appointed by the Speaker of the House of Representatives, theChairman of the Senate Judiciary Committee, and the President Pro Tempore of the Senate. State legislators also choose the remaining 4members of the Commission, which include judges and the lay public.

19. Until the next biennial general election.

VERMONT

Supreme Court X 6 Retained by vote of General Assembly (6 year term)

Superior Court X 6 Same

District Court X 6 Same

VIRGINIA

Supreme Court X(L) 12 Reappointment by legislature

Court of Appeals X(L) 8 Reappointment by legislature

Circuit Court X(L) 8 Reappointment by legislature

WASHINGTON




WEST VIRGINIA



WISCONSIN




WYOMING



51

Appendix




SOURCE: American Judicature Society, Judicial Selection in the States, (April 2002), availible at <http://www.ajs.org/js/Jud%20Sel%20Chart%20-%20Apr%202002.pdf>. Reprinted with permission.

52

Page 4, EDMUND B. FITZGERALD withwhich PATRICK W. GROSS has asked to beassociated.

The statement strongly recommendsexpanding the use of judicial nominatingcommissions based on perceived equity, aswell as a broad spectrum of successful current practices. It notes, however, somestates many not wish to follow this proce-dure, and in these cases judicial electionsshould be publicly funded.

But public funding would not addressmany of the shortcomings of judicial elec-tions identified in this report: they may onlybe a crutch, one with severe implementationproblems. This is a far less desirable out-come and we should hesitate to embrace it.

Memorandum of Comment, Reservation, or Dissent

OBJECTIVES OF THE COMMITTEE FOR ECONOMIC DEVELOPMENT

For 60 years, the Committee for EconomicDevelopment has been a respected influenceon the formation of business and publicpolicy. CED is devoted to these two objectives:

To develop, through objective research andinformed discussion, findings and recommenda-tions for private and public policy that will contrib-ute to preserving and strengthening our free society,achieving steady economic growth at high employ-ment and reasonably stable prices, increasing pro-ductivity and living standards, providing greaterand more equal opportunity for every citizen, andimproving the quality of life for all.

To bring about increasing understanding bypresent and future leaders in business, government,and education, and among concerned citizens, of theimportance of these objectives and the ways in whichthey can be achieved.

CED’s work is supported by private volun-tary contributions from business and industry,

foundations, and individuals. It is independent,nonprofit, nonpartisan, and nonpolitical.

Through this business-academic partner-ship, CED endeavors to develop policy state-ments and other research materials thatcommend themselves as guides to public andbusiness policy; that can be used as texts incollege economics and political science coursesand in management training courses; thatwill be considered and discussed by newspaperand magazine editors, columnists, and com-mentators; and that are distributed abroad topromote better understanding of the Ameri-can economic system.

CED believes that by enabling businessleaders to demonstrate constructively their con-cern for the general welfare, it is helping busi-ness to earn and maintain the national andcommunity respect essential to the successfulfunctioning of the free enterprise capitalistsystem.

53

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Executive OfficerSiecor CorporationHEATHER HIGGINS, PresidentRandolph FoundationSTEVEN R. HILL, Senior Vice President,

Human ResourcesWeyerhaeuser CompanyRODERICK M. HILLS, ChairmanHills Enterprises, Ltd.GLEN J. HINER, Retired Chairman and Chief

Executive OfficerOwens CorningHAYNE HIPP, President and Chief Executive OfficerThe Liberty CorporationDEBORAH C. HOPKINS, Senior AdvisorMarakon AssociatesPAUL M. HORN, Senior Vice President, ResearchIBM CorporationMATINA S. HORNER, Executive Vice PresidentTIAA-CREFPHILIP K. HOWARD, Vice ChairmanCovington & BurlingROBERT J. HURST, Vice ChairmanThe Goldman Sachs Group, Inc.SHIRLEY ANN JACKSON, PresidentRensselaer Polytechnic InstituteWILLIAM C. JENNINGS, ChairmanUS Interactive, Inc.JEFFREY A. JOERRES, President and Chief

Executive OfficerManpower Inc.JAMES A. JOHNSON, Chairman and Chief

Executive OfficerJohnson Capital PartnersL. OAKLEY JOHNSON, Senior Vice President,

Corporate AffairsAmerican International GroupROBERT M. JOHNSON, Chairman and Chief

Executive OfficerBowne & Co., Inc.

*

*

*Life Trustee

LAWRENCE R. JOHNSTON, Chairman and ChiefExecutive Officer

Albertson’s, Inc.VAN E. JOLISSAINT, Corporate EconomistDaimlerChrysler CorporationH.V. JONES, Managing DirectorKorn/Ferry InternationalPRES KABACOFF, President and Co-ChairmanHistoric Restoration, Inc.EDWARD A. KANGAS, Chairman and

Chief Executive Officer (retired)Deloitte Touche TohmatsuJOSEPH E. KASPUTYS, Chairman, President

and Chief Executive OfficerGlobal Insight, Inc.THOMAS J. KLUTZNICK, PresidentThomas J. Klutznick CompanyCHARLES F. KNIGHT, ChairmanEmerson Electric Co.CHARLES E.M. KOLB, PresidentCommittee for Economic DevelopmentALLEN J. KROWE, Retired Vice ChairmanTexaco Inc.C. JOSEPH LABONTE, ChairmanThe Vantage GroupKURT M. LANDGRAF, President and Chief

Executive OfficerEducational Testing ServiceW. MARK LANIER, PresidentThe Lanier Law Firm, P.C.CHARLES R. LEE, ChairmanVerizon CommunicationsWILLIAM W. LEWIS, Director EmeritusMcKinsey Global InstituteMcKinsey & Company, Inc.IRA A. LIPMAN, Chairman of the Board and PresidentGuardsmark, Inc.JOHN W. LOOSE, President and Chief

Executive OfficerCorning, Inc.BRUCE K. MACLAURY, President EmeritusThe Brookings InstitutionCOLETTE MAHONEY, President EmeritusMarymount Manhattan CollegeELLEN R. MARRAM, PartnerNorth Castle PartnersALONZO L. MCDONALD, Chairman and Chief

Executive OfficerAvenir Group, Inc.EUGENE R. MCGRATH, Chairman, President and

Chief Executive OfficerConsolidated Edison Company of New York, Inc.DAVID E. MCKINNEY, PresidentThe Metropolitan Museum of ArtDEBORAH HICKS MIDANEK, PrincipalGlass & Associates, Inc.HARVEY R. MILLER, Senior PartnerWeil, Gotshal & MangesALFRED T. MOCKETT, Chairman and Chief

Executive OfficerAMS CorporationNICHOLAS G. MOORE, Chairman EmeritusPricewaterhouseCoopers

DIANA S. NATALICIO, PresidentThe University of Texas at El PasoMARILYN CARLSON NELSON, Chairman, President

and Chief Executive OfficerCarlson Companies, Inc.MATTHEW NIMETZ, PartnerGeneral Atlantic PartnersTHOMAS H. O’BRIEN, Chairman of the Executive

CommitteePNC Financial Services Group, Inc.DEAN R. O’HARE, Chairman and Chief

Executive OfficerChubb CorporationRONALD L. OLSON, PartnerMunger, Tolles & OlsonROBERT J. O'TOOLE, Chairman and Chief

Executive OfficerA.O. Smith CorporationSTEFFEN E. PALKO, Vice Chairman and PresidentXTO Energy Inc.SANDRA PANEM, PartnerCross Atlantic Partners, Inc.JERRY PARROTT, Vice President, Corporate

CommunicationsHuman Genome Sciences, Inc.CAROL J. PARRY, PresidentCorporate Social Responsibility AssociatesVICTOR A. PELSON, Senior AdvisorUBS Warburg LLCDONALD K. PETERSON, President and Chief

Executive OfficerAvaya Inc.PETER G. PETERSON, ChairmanThe Blackstone GroupTODD E. PETZEL, President and Chief

Investment OfficerThe Commonfund Asset Management Co., Inc.RAYMOND PLANK, Chairman and Chief

Executive OfficerApache CorporationARNOLD B. POLLARD, President and Chief

Executive OfficerThe Chief Executive GroupHUGH B. PRICE, President and Chief

Executive OfficerNational Urban LeagueNED REGAN, PresidentBaruch CollegeJAMES Q. RIORDAN, ChairmanQuentin Partners Co.E. B. ROBINSON, JR., Chairman EmeritusDeposit Guaranty CorporationROY ROMERFormer Governor of ColoradoSuperintendent, Los Angeles Unified School DistrictDANIEL ROSE, ChairmanRose Associates, Inc.HOWARD M. ROSENKRANTZ, Chief Executive OfficerGrey Flannel AuctionsLANDON H. ROWLAND, Chairman, President and

Chief Executive OfficerStilwell Financial Inc.NEIL L. RUDENSTINE, Chair, ArtStor Advisory BoardThe Andrew Mellon Foundation

*Life Trustee

GEORGE RUPP, PresidentInternational Rescue CommitteeGEORGE F. RUSSELL, JR.Sunshine Management Services, LLCEDWARD B. RUST, JR., Chairman and Chief

Executive OfficerState Farm Insurance CompaniesARTHUR F. RYAN, Chairman and Chief

Executive OfficerThe Prudential Insurance Company of AmericaMARGUERITE W. SALLEE, Chairman and Chief

Executive OfficerBrown SchoolsSTEPHEN W. SANGER, Chairman and Chief

Executive OfficerGeneral Mills, Inc.BERTRAM L. SCOTT, PresidentTIAA-CREF Life Insurance CompanyMICHAEL M. SEARS, Senior Vice President and

Chief Financial OfficerThe Boeing CompanyDONNA SHALALA, PresidentUniversity of MiamiWALTER H. SHORENSTEIN, Chairman of the BoardThe Shorenstein CompanyGEORGE P. SHULTZ, Distinguished FellowThe Hoover InstitutionStanford UniversityJOHN C. SICILIANO, Director, Global Institutional

ServicesDimensional Fund AdvisorsRUTH J. SIMMONS, PresidentBrown UniversityFREDERICK W. SMITH, Chairman, President and

Chief Executive OfficerFederal Express CorporationJOHN F. SMITH, JR., ChairmanGeneral Motors CorporationDAVID A. SPINA, Chairman and Chief

Executive OfficerState Street CorporationALAN G. SPOON, Managing General PartnerPolaris VenturesSTEPHEN STAMAS, ChairmanThe American AssemblyPAULA STERN, PresidentThe Stern Group, Inc.DONALD M. STEWART, President and Chief

Executive OfficerThe Chicago Community TrustROGER W. STONE, Chairman and Chief

Executive OfficerBox USA Group, Inc.MATTHEW J. STOVER, PresidentLKM VenturesRICHARD J. SWIFT, Chairman, President and Chief

Executive OfficerFoster Wheeler CorporationRICHARD F. SYRON, President and Chief

Executive OfficerThermo Electron Corporation

HENRY TANG, ChairmanCommittee of 100FREDERICK W. TELLING, Vice President Corporate

Strategic Planning and Policy DivisionPfizer Inc.JAMES A. THOMSON, President and Chief

Executive OfficerRANDCHANG-LIN TIEN, NEC Distinguished Professor of

Engineering EmeritusUniversity of California, BerkeleyTHOMAS J. TIERNEY, FounderThe Bridgespan GroupSTOKLEY P. TOWLES, PartnerBrown Brothers Harriman & Co.STEPHEN JOEL TRACHTENBERG, PresidentGeorge Washington UniversityJAMES L. VINCENT, ChairmanBiogen, Inc.FRANK VOGL, PresidentVogl CommunicationsDONALD C. WAITE, III, DirectorMcKinsey & Company, Inc.HERMINE WARREN, PresidentHermine Warren Associates, Inc.ARNOLD R. WEBER, President EmeritusNorthwestern UniversityJOSH S. WESTON, Honorary ChairmanAutomatic Data Processing, Inc.CLIFTON R. WHARTON, JR., Former Chairman

and Chief Executive OfficerTIAA-CREFDOLORES D. WHARTON, Former Chairman and

Chief Executive OfficerThe Fund for Corporate Initiatives, Inc.RICHARD WHEELER, Chief Executive OfficerInContext Data Systems, Inc.MICHAEL W. WICKHAM, Chairman and Chief

Executive OfficerRoadway Express, Inc.HAROLD M. WILLIAMS, President EmeritusThe J. Paul Getty TrustJ. KELLEY WILLIAMS, Chairman and Chief

Executive OfficerChemFirst Inc.L. R. WILSON, ChairmanNortel Networks CorporationLINDA SMITH WILSON, President EmeritaRadcliffe CollegeMARGARET S. WILSON, Chairman and Chief

Executive OfficerScarbroughsJACOB J. WORENKLEIN, Global Head of Project

& Sectorial FinanceSociete GeneraleKURT E. YEAGER, President and Chief Executive

OfficerElectric Power Research InstituteMARTIN B. ZIMMERMAN, Vice President,

Governmental AffairsFord Motor Company

*

RAY C. ADAM, Retired ChairmanNL IndustriesROBERT O. ANDERSON, Retired ChairmanHondo Oil & Gas CompanyROY L. ASHLos Angeles, CaliforniaSANFORD S. ATWOOD, President EmeritusEmory UniversityROBERT H. B. BALDWIN, Retired ChairmanMorgan Stanley Group Inc.GEORGE F. BENNETT, Chairman EmeritusState Street Investment TrustHAROLD H. BENNETTSalt Lake City, UtahJACK F. BENNETT, Retired Senior Vice PresidentExxon CorporationHOWARD W. BLAUVELTKeswick, VirginiaMARVIN BOWERDelray Beach, FloridaALAN S. BOYDLady Lake, FloridaANDREW F. BRIMMER, PresidentBrimmer & Company, Inc.PHILIP CALDWELL, Chairman (Retired)Ford Motor CompanyHUGH M. CHAPMAN, Retired ChairmanNationsBank SouthE. H. CLARK, JR., Chairman and Chief

Executive OfficerThe Friendship GroupA.W. CLAUSEN, Retired Chairman and Chief

Executive OfficerBankAmerica CorporationDOUGLAS D. DANFORTHExecutive AssociatesJOHN H. DANIELS, Retired Chairman and

Chief Executive OfficerArcher-Daniels Midland Co.RALPH P. DAVIDSONWashington, D.C.ALFRED C. DECRANE, JR., Retired Chairman and

Chief Executive OfficerTexaco, Inc.ROBERT R. DOCKSON, Chairman EmeritusCalFed, Inc.LYLE EVERINGHAM, Retired ChairmanThe Kroger Co.THOMAS J. EYERMAN, Retired PartnerSkidmore, Owings & MerrillDON C. FRISBEE, Chairman EmeritusPacifiCorpRICHARD L. GELB, Chairman EmeritusBristol-Myers Squibb Company

CED HONORARY TRUSTEES

W. H. KROME GEORGE, Retired ChairmanALCOAWALTER B. GERKEN, Chairman and Chief

Executive Officer (Retired)Pacific Life Insurance CompanyLINCOLN GORDON, Guest ScholarThe Brookings InstitutionJOHN D. GRAY, Chairman EmeritusHartmarx CorporationRICHARD W. HANSELMAN, ChairmanHealth Net Inc.ROBERT S. HATFIELD, Retired ChairmanThe Continental Group, Inc.ARTHUR HAUSPURG, Member, Board of TrusteesConsolidated Edison Company of New York, Inc.PHILIP M. HAWLEY, Retired Chairman of the BoardCarter Hawley Hale Stores, Inc.ROBERT C. HOLLAND, Senior FellowThe Wharton SchoolUniversity of PennsylvaniaLEON C. HOLT, JR., Retired Vice ChairmanAir Products and Chemicals, Inc.SOL HURWITZ, Retired PresidentCommittee for Economic DevelopmentGEORGE F. JAMESPonte Vedra Beach, FloridaDAVID KEARNS, Chairman EmeritusNew American SchoolsGEORGE M. KELLER, Chairman of the Board, RetiredChevron CorporationFRANKLIN A. LINDSAY, Retired ChairmanItek CorporationROBERT W. LUNDEEN, Retired ChairmanThe Dow Chemical CompanyRICHARD B. MADDEN, Retired Chairman and

Chief Executive OfficerPotlatch CorporationAUGUSTINE R. MARUSILake Wales, FloridaWILLIAM F. MAY, Chairman and Chief

Executive OfficerStatue of Liberty-Ellis Island Foundation, Inc.OSCAR G. MAYER, Retired ChairmanOscar Mayer & Co.GEORGE C. MCGHEE, Former U.S. Ambassador

and Under Secretary of StateJOHN F. MCGILLICUDDY, Retired Chairman

and Chief Executive OfficerChemical Banking CorporationJAMES W. MCKEE, JR., Retired ChairmanCPC International, Inc.CHAMPNEY A. MCNAIR, Retired Vice ChairmanTrust Company of GeorgiaJ. W. MCSWINEY, Retired Chairman of the BoardThe Mead Corporation

ROCCO C. SICILIANOBeverly Hills, CaliforniaELMER B. STAATS, Former Controller

General of the United StatesFRANK STANTON, Former PresidentCBS, Inc.EDGAR B. STERN, JR., Chairman of the BoardRoyal Street CorporationALEXANDER L. STOTTFairfield, ConnecticutWAYNE E. THOMPSON, Past ChairmanMerritt Peralta Medical CenterTHOMAS A. VANDERSLICETAV AssociatesSIDNEY J. WEINBERG, JR., Senior DirectorThe Goldman Sachs Group, Inc.ROBERT C. WINTERS, Chairman EmeritusPrudential Insurance Company of AmericaRICHARD D. WOOD, DirectorEli Lilly and CompanyCHARLES J. ZWICKCoral Gables, Florida

ROBERT E. MERCER, Retired ChairmanThe Goodyear Tire & Rubber Co.RUBEN F. METTLER, Retired Chairman and

Chief Executive OfficerTRW Inc.LEE L. MORGAN, Former Chairman of the BoardCaterpillar, Inc.ROBERT R. NATHAN, ChairmanNathan Associates, Inc.J. WILSON NEWMAN, Retired ChairmanDun & Bradstreet CorporationJAMES J. O’CONNOR, Former Chairman and Chief

Executive OfficerUnicom CorporationLEIF H. OLSEN, PresidentLHO GROUPNORMA PACE, PresidentPaper Analytics AssociatesCHARLES W. PARRY, Retired ChairmanALCOAWILLIAM R. PEARCE, DirectorAmerican Express Mutual FundsJOHN H. PERKINS, Former PresidentContinental Illinois National Bank and Trust CompanyRUDOLPH A. PETERSON, President and Chief

Executive Officer (Emeritus)BankAmerica CorporationDEAN P. PHYPERSNew Canaan, ConnecticutEDMUND T. PRATT, JR., Retired Chairman and

Chief Executive OfficerPfizer Inc.ROBERT M. PRICE, Former Chairman and

Chief Executive OfficerControl Data CorporationJAMES J. RENIERRenier & AssociatesIAN M. ROLLAND, Former Chairman and Chief

Executive OfficerLincoln National CorporationAXEL G. ROSIN, Retired ChairmanBook-of-the-Month Club, Inc.WILLIAM M. ROTHPrinceton, New JerseyWILLIAM RUDERWilliam Ruder IncorporatedRALPH S. SAUL, Former Chairman of the BoardCIGNA CompaniesGEORGE A. SCHAEFER, Retired Chairman of the BoardCaterpillar, Inc.ROBERT G. SCHWARTZNew York, New YorkMARK SHEPHERD, JR., Retired ChairmanTexas Instruments, Inc.

CED RESEARCH ADVISORY BOARD

ChairmanJOHN P. WHITELecturer in Public PolicyJohn F. Kennedy School of GovernmentHarvard University

JAGDISH BHAGWATIArthur Lehman Professor of EconomicsColumbia University

RALPH D. CHRISTYJ. Thomas Clark ProfessorDepartment of Agricultural, Resource, and Managerial EconomicsCornell University

ALAIN C. ENTHOVENMarriner S. Eccles Professor of Public

and Private ManagementStanford UniversityGraduate School of Business

BENJAMIN M. FRIEDMANWilliam Joseph Maier Professor of Political EconomyHarvard University

ROBERT W. HAHNResident ScholarAmerican Enterprise Institute

HELEN F. LADDProfessor of Public Policy Studies and

EconomicsSanford Institute of Public PolicyDuke University

ROBERT LITANVice President, Director of Economic

StudiesThe Brookings Institution

RUDOLPH G. PENNERSenior FellowThe Urban Institute

CECILIA E. ROUSEProfessor of Economics and Public AffairsWoodrow Wilson SchoolPrinceton University

DAVID WESSELAssistant Bureau Chief/ColumnistThe Wall Street Journal

CHARLES E.M. KOLBPresident

CED PROFESSIONAL AND ADMINISTRATIVE STAFF

Communications/Government RelationsCLAUDIA P. FEUREYVice President for Communications

and Corporate Affairs

MICHAEL J. PETROVice President and Director of Business and Government Policy

and Chief of Staff

CHRIS DREIBELBISBusiness and Government Policy

Associate

VALERIE MENDELSOHNConference Manager and Secretary of

the Research and Policy Committee

CHRISTINE RYANPublic Affairs Associate

ROBIN SAMERSAssistant Director of Communications

DevelopmentMARTHA E. HOULEVice President for Development and

Secretary of the Board of Trustees

GLORIA Y. CALHOUNDevelopment Assistant

CAROLINA LOPEZManager, Development

SANDRA L. MARTINEZDevelopment Associate

NICHOLE REMMERTFoundation Associate

RICHARD M. RODERODirector of Development

Finance and AdministrationKAREN CASTRODirector of Finance and Administration

HOOJU CHOIDatabase Administrator

SHARON A. FOWKESExecutive Assistant to the President

ARLENE M. MURPHYExecutive Assistant to the President and Office Manager

DENISE SMITHFinance and Administration Assistant

AMANDA TURNEROffice Manager

ResearchEVERETT M. EHRLICHSenior Vice President and

Director of Research

VAN DOORN OOMSSenior Fellow

JANET HANSENVice President and Director

of Education Studies

ELLIOT SCHWARTZVice President and Director

of Economic Studies

ALEXANDRA BEATTYSenior Project Director for Education

DAVID KAMINResearch Associate

JEFF LOESELResearch Associate

NORA LOVRIENResearch Associate

Advisor on InternationalEconomic PolicyISAIAH FRANKWilliam L. Clayton Professor

of International EconomicsThe Johns Hopkins University

*Statements issued in association with CED counterpart organizations in foreign countries.

STATEMENTS ON NATIONAL POLICY ISSUED BY THECOMMITTEE FOR ECONOMIC DEVELOPMENT

SELECTED PUBLICATIONS:

A Shared Future: Reducing Global Poverty (2002)A New Vision for Health Care: A Leadership Role for Business (2002)Preschool For All: Investing In a Productive and Just Society (2002)From Protest to Progress: Addressing Labor and Environmental Conditions Through Freer Trade (2001)The Digital Economy: Promoting Competition, Innovation, and Opportunity (2001)Reforming Immigration: Helping Meet America's Need for a Skilled Workforce (2001)Measuring What Matters: Using Assessment and Accountability to Improve Student Learning (2001)Improving Global Financial Stability (2000)The Case for Permanent Normal Trade Relations with China (2000)Welfare Reform and Beyond: Making Work Work (2000)Breaking the Litigation Habit: Economic Incentives for Legal Reform (2000)New Opportunities for Older Workers (1999)Investing in the People's Business: A Business Proposal for Campaign Finance Reform (1999)The Employer’s Role in Linking School and Work (1998)Employer Roles in Linking School and Work: Lessons from Four Urban Communities (1998)America’s Basic Research: Prosperity Through Discovery (1998)Modernizing Government Regulation: The Need For Action (1998)U.S. Economic Policy Toward The Asia-Pacific Region (1997)Connecting Inner-City Youth To The World of Work (1997)Fixing Social Security (1997)Growth With Opportunity (1997)American Workers and Economic Change (1996)Connecting Students to a Changing World: A Technology Strategy for Improving Mathematics and

Science Education (1995)Cut Spending First: Tax Cuts Should Be Deferred to Ensure a Balanced Budget (1995)Rebuilding Inner-City Communities: A New Approach to the Nation’s Urban Crisis (1995)Who Will Pay For Your Retirement? The Looming Crisis (1995)Putting Learning First: Governing and Managing the Schools for High Achievement (1994)Prescription for Progress: The Uruguay Round in the New Global Economy (1994)*From Promise to Progress: Towards a New Stage in U.S.-Japan Economic Relations (1994)U.S. Trade Policy Beyond The Uruguay Round (1994)In Our Best Interest: NAFTA and the New American Economy (1993)What Price Clean Air? A Market Approach to Energy and Environmental Policy (1993)Why Child Care Matters: Preparing Young Children For A More Productive America (1993)Restoring Prosperity: Budget Choices for Economic Growth (1992)The United States in the New Global Economy: A Rallier of Nations (1992)

The Economy and National Defense: Adjusting to Cutbacks in the Post-Cold War Era (1991)Politics, Tax Cuts and the Peace Dividend (1991)The Unfinished Agenda: A New Vision for Child Development and Education (1991)Foreign Investment in the United States: What Does It Signal? (1990)An America That Works: The Life-Cycle Approach to a Competitive Work Force (1990)Breaking New Ground in U.S. Trade Policy (1990)Battling America’s Budget Deficits (1989)*Strengthening U.S.-Japan Economic Relations (1989)Who Should Be Liable? A Guide to Policy for Dealing with Risk (1989)Investing in America’s Future: Challenges and Opportunities for Public Sector Economic

Policies (1988)Children in Need: Investment Strategies for the Educationally Disadvantaged (1987)Finance and Third World Economic Growth (1987)Reforming Health Care: A Market Prescription (1987)Work and Change: Labor Market Adjustment Policies in a Competitive World (1987)Leadership for Dynamic State Economies (1986)Investing in Our Children: Business and the Public Schools (1985)Fighting Federal Deficits: The Time for Hard Choices (1985)Strategy for U.S. Industrial Competitiveness (1984)Productivity Policy: Key to the Nation’s Economic Future (1983)Energy Prices and Public Policy (1982)Public Private Partnership: An Opportunity for Urban Communities (1982)Reforming Retirement Policies (1981)Transnational Corporations and Developing Countries: New Policies for a Changing

World Economy (1981)Stimulating Technological Progress (1980)Redefining Government’s Role in the Market System (1979)Jobs for the Hard to Employ: New Directions for a Public-Private Partnership (1978)

CE Circulo de EmpresariosMadrid, Spain

CEAL Consejo Empresario de America LatinaBuenos Aires, Argentina

CEDA Committee for Economic Development of AustraliaSydney, Australia

CIRD China Institute for Reform and DevelopmentHainan, People’s Republic of China

EVA Centre for Finnish Business and Policy StudiesHelsinki, Finland

FAE Forum de Administradores de EmpresasLisbon, Portugal

IDEP Institut de l’EntrepriseParis, France

IW Institut der deutschen Wirtschaft KoelnCologne, Germany

Keizai DoyukaiTokyo, Japan

SMO Stichting Maatschappij en OndernemingThe Netherlands

SNS Studieförbundet Naringsliv och SamhälleStockholm, Sweden

CED COUNTERPART ORGANIZATIONS

Close relations exist between the Committee for Economic Development and inde-pendent, nonpolitical research organizations in other countries. Such counterpartgroups are composed of business executives and scholars and have objectives similarto those of CED, which they pursue by similarly objective methods. CED cooperateswith these organizations on research and study projects of common interest to thevarious countries concerned. This program has resulted in a number of joint policystatements involving such international matters as energy, East-West trade, assis-tance to developing countries, and the reduction of nontariff barriers to trade.

Documents

JUSTICE FOR HIRE...Library of Congress Cataloging-in-Publication Data Justice for hire : a statement on national policy by the Research and Policy Committee of the Committee for Economic