Exploring options for an independent judiciary

By John Minnis
Legal News

While the recent speech by retired U.S. Supreme Court Associate Justice Sandra Day O’Connor in Detroit justifiably received the bulk of media attention, other speakers from around the country made valuable contributions on the topic of judicial selection.
“Everyone in this room understands the complexity of this issue,” Wayne State University President Dr. Jay Noren told the early morning attendees at the seminar entitled “Options for an Independent Judiciary in Michigan.”
Robert Ackerman, dean of the WSU Law School, started the morning off on a humorous note by observing that while he and Noren have been at Wayne for almost a year longer than President Obama has been president, “neither of us has won the Nobel Peace Prize.”
Both men began at WSU in May 2008, Ackerman as the 10th dean of the law school, and Noren as the 10th president of the university.
The nonpartisan symposium was co-sponsored by the Wayne State Law School, the American Board of Trial Advocates (ABOTA), the State Bar of Michigan and the League of Women Voters. Funding was provided by WSU and the Joyce Foundation.
The purpose of the symposium was to present various potential reforms to the process of electing or selecting Michigan’s Supreme Court Justices in 2020 and beyond. Topics discussed included the advantages and disadvantages of merit selection of judges over the current elective process, general election reform, public financing of judicial elections and voter education.
Loretta Ames, president of the Michigan Chapter of ABOTA, said the national organization was founded in 1957 in order to protect the right to jury trial, promote civility and to provide voter education. ABOTA membership is made up equally of plaintiff and defense attorneys.
“Nothing is more important to a fair trial than an independent judiciary,” she said.
One reason for the 2020 goal to implement reform in selecting Michigan Supreme Court justices, Ames said, was so not to impact pending elections. The symposium was not a forum to criticize the current and past courts, she said.
“Polarization of the current judicial system is not what is being discussed today,” she said. “There will be no discussion of the makeup of the current or past supreme courts.”
Moderator Bert Brandenburg, executive director of Justice at Stake, introduced speaker James Sample, of Hofstra University, who served as an attorney in the Democracy Program at the Brennan Center for Justice at New York University School of Law. At the Brennan Center, Sample was involved in Caperton v. A. T. Massey Coal Co., a 2009 U.S. Supreme Court decision much discussed at the symposium.
“The right to a fair and impartial trial is in danger,” he said. “We must think small and think big. We need a tourniquet and far-off surgery.”
He noted that a polling of 200,000 state court judges found half of them believed money was influencing decision-making on the bench — “but not theirs, of course.”
Sample said the influence was subtle, not a quid pro quo, not on an individual level. He quoted O’Connor, saying, “We put cash in the courtroom, and that is wrong.”
Citing Caperton, where a West Virginia Supreme Court justice won election largely by cash spent by a single corporation and then refused to recuse himself when the corporation came before him, Sample said, “Over the long term, we all lose when the biggest spender and not the best case wins.”
WSU Distinguished Law Professor Robert Sedler gave a history lesson on how Michigan Supreme Court justices came to be elected. He pointed out that while the state constitution calls for nonpartisan elections of supreme court justices, the framers left the nomination process up to the state Legislature, which then gave the nominating authority to political parties.
“The Legislature imposed a partisan system on a nonpartisan election,” he said. “We have instances of political parties created for the task of nominating a supreme court candidate.”
Sedler noted that changes to how justices are selected were defeated in the 1961-62 constitutional convention.
“If the state has a problem with impartiality,” he said, “it brought it upon itself by having judges elected.”
Any attempt to regulate judicial campaigning runs afoul of the First Amendment, he said, adding that while unions and corporations are restricted by what they can donate to judicial candidates, they can spend as much as they want to independently promote (or attack) a candidate via so-called “issue” ad campaigns.
Rich Robinson, executive director of the Michigan Campaign Finance Network, said the state’s system of electing judges was “ripe for reform.” He cited the escalating costs of judicial campaigns for the states’ highest courts.
He noted that while in the wake of Caperton the state of Michigan adopted a rule that judges must disqualify themselves even for the appearance of partiality, “Who’s to know if half the money is off the books as issue campaigns.”
“Don’t take my word for it, because I’m not an attorney,” he said, “but the Michigan Legislature would be on firm ground to require disclosure of issue style campaign spending.”
Robinson recommended public financing of state supreme court elections by using a check-off box on state income tax forms similar to that available for presidential elections on federal income tax forms.
“We could go a long way to promoting independence and fairness in judicial elections,” he said. “I’m not saying there is definite causality, but the correlation is very close and unmistakable.”
One questioner asked about the secrecy behind issue campaigns. Robinson called them a “black box. We don’t know who is financing these campaigns. … Voters have a compelling reason to know whose beliefs they are voting for.”
Moderator Brandenburg said that during the break a “distinguished” attendee put the matter in concise words: “The motive of the voter casting a ballot is private, the motive of the voter seeking to influence others is what requires disclosure.”
Jesse Rutledge, vice president for external affairs for the National Center for State Courts, said his organization is “agnostic” on the matter of how judges should be selected.
He said reform was “not so impossible that you have to throw your hands in the air and give up. The North Carolina experiment is an interesting microcosm on how to make this come about.”
North Carolina’s Judicial Campaign Reform Act of 2002 that made appellate court elections nonpartisan, reduced campaign contribution limits, provided optional public funding for qualified candidates and funded a statewide voter guide put out the state board of elections. Public funding was provided by a voluntary $3 check box on state income tax forms and a $50 surcharge to all members of the state bar.
Rutledge noted that $233,000 in public funding doesn’t sound like much, but it goes farther when one doesn’t have to spend money to make money.
“The one thing you don’t have to do under public funding,” he said, “is to raise money. You can’t imagine how much money it takes to raise money.”
Seth Anderson, executive director of the American Judicature Society, said merit judicial systems were better rated than elective systems. Further, women and people of color benefited more under the merit system of selecting judges, he said, noting that just 12 percent of all state judges are people of color.
“The selection of judges is as textbook example of federalism in practice,” he said. “Every state does it differently.”
Anderson cited a poll that found increasing public dissatisfaction with the judicial election process. He said his organization is looking for a response to the bumper sticker message: Don’t let the elite take away your right to vote. The answer, he said, would be a merit selection process reinforced by incumbent elections.
He was pleased to note that the U.S Chamber of Commerce has come out in favor of the merit selection system for state supreme court justices.
Lastly, citing the recent Citizens United v. Federal Election Commission U.S. Supreme Court decision that basically said limits on campaign spending by corporations and unions violated their First Amendment rights, Anderson predicted, “We will see more nasty campaigns than ever before.”
Anderson feared corporations and unions could “blackmail” judges by threatening “issue campaigns” that would destroy them.
Indiana educator Daryl Yost discussed his experience on his state’s Commission on Judicial Qualifications and Nominations.
“I never felt my lack of education in jurisprudence was a hindrance,” he said. “I always felt respect and appreciation from the fellow members of the commission, particularly the attorneys, and mostly the chief justice.”
He said the goals of the commission coincided with his as an educator: transparency, integrity and fairness.
He discussed how his commission received and reviewed judicial nominations and recommended finalists to the Indiana governor.
“The process, from my point of view, was comprehensive,” he Yost said. (As an educator, he said, he found the judicial candidates writing abilities lacking.) “I never felt undue influence from the governor’s office.”
Yost said he highly recommends the merit selection system of judges.
“I think the selection of judges at the supreme court, the court of appeals and the tax court worked quite well,” he said. “Now that I have experienced the system, I am proud to be a Hoosier.”

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