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Money is eroding judicial independence

By Staff | Nov 5, 2010

If people won’t be getting justice in the future, maybe it’ll be because they haven’t bought any. That may sound cynical but it is getting closer to the truth with each election as big money and interest groups invade state judicial elections.

Even though the U.S. Constitution has been extolled and emulated by state constitution writers since nationhood, two-thirds of the states have not acknowledged the importance of an independent judiciary. Instead, they provide for judicial elections, suggesting that judges ought to base decisions on public opinion rather than the law and constitutions.

Since the opinions of the Founding Fathers are universally venerated, the words of Alexander Hamilton in Federalist No. 78 should be given some credibility. The independence of judges is important, Hamilton argued, “to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men…sometimes disseminate among the people”

Because the Founding Fathers wanted a judiciary that could guarantee justice in spite of public opinion, the Constitution provides for life-time appointment of judges during good behavior, with removal possible by a vote of both houses of Congress. Even folks favoring election of judges at the state level would not favor changing the federal method and having U.S. Supreme Court justices run for office.

In this fall’s election, strong movements were launched in at least four states Iowa, Colorado, Illinois and Kansas to boot judges out of office because various interest groups did not like their interpretations of constitutions and laws. The campaigns succeeded in Iowa but lost in the other three states.

In 2008, $33 million was spent on judicial races in 15 states. Over $1 million was spent this year in Illinois alone.

The motives of those financing judicial races are obvious to the public. Over 75 per cent of the people believe that campaign cash affects courtroom decisions. With big money influencing the election or retention of more and more judges, public confidence in the state courts certainly will erode.

For the past few years, retired U. S. Supreme Court Justice Sandra Day O’Connor has conducted a nationwide crusade to save the state courts from politics and money. In the 2010 election, she campaigned-without success-for the “merit” system in Nevada. (The merit system provides for appointment by the governor from a slate nominated by a special commission. Eventually, people vote on whether or not to retain the appointee in office.)

North Dakota elects its judges on a nonpartisan ballot. We have not experienced big money in judicial campaigns yet, but this growing threat is good reason to revisit our selection process. I always thought the merit system was the answer for North Dakota but now find that it does not really protect the independence of the courts. Iowa, Colorado, Illinois and Kansas all have the merit system and the process has proven to be vulnerable to big money and special interests. Apparently, states using any form of judicial election or retention vote will attract interest group money in the future.

The merit system was rejected by North Dakota voters 42 years ago in a 1968 election. Maybe it’s time for the Legislature to take a look at permitting the governor to appoint judges, subject to confirmation by the senate. I would trust the governor to make a better choice than an interest group.

Omdahl is a UND professor emeritus in political science and a former lieutenant governor of North Dakota.

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