Posted 09-29-06 

 
Electing judges seems in and of itself antithetical to the idea of judicial independence. Why do we elect judges in the first place? Can this method of judicial selection work without compromising the integrity of the profession?

The popular election of judges in the United States was one of the populist reforms championed by Andrew Jackson in the early 19th century. The appointment of judges up to that point had often reflected the spoils system and party patronage, and the prestige of the bench had declined because judges were appointed based on service to the party rather than based on merit. The hope was that popular election would prevent party leaders from dictating the composition of the bench. New York was one of 19 states to implement judicial elections during the early 1800s.

Ironically, the popular elections merely ushered in another type of patronage. The pressure points have simply  been shifted, such that judicial wannabes cannot now get onto the ballot without the support of party leaders. At the state Supreme Court level, that might well change with the advent of federally mandated open primaries, but the powers that be in Albany still have to weigh in on rebuilding that system. In any event judges are currently still beholden to the party bosses, and they remain so after election, encouraged by the system to appease political leaders whenever they near re-election. In this way, many would argue that judicial elections very much compromise the independence of the bench.

Another controversy surrounding judicial elections is the fundraising necessary to conduct a campaign. Lawyers and large law firms are the parties most vested in the outcome of judicial elections; therefore, lawyers and corporations are most often the parties who contribute to the campaigns of judicial candidates. If judges rely on these campaign contributions to run their campaigns, what are we to make of their relationship to contributors who subsequently appear before them in court?

Ethics guidelines are designed at least partly to allay the effects that the political system has on the impartiality and integrity of the judiciary. In New York, Part 100.5 of the Rules Governing Judicial Conduct sets the guidelines and restrictions that are placed on the political activity of judges and judicial candidates.

Judicial campaigns are supposed to be much less partisan than those run by non-judicial candidates for office. For instance, judges are not allowed to personally solicit funds for their campaigns, and they are not permitted to make any promise to decide cases a certain way if elected. Judges are also not supposed to know who contributes to their campaigns, and if they do find out, they are under an obligation to recuse themselves if that party comes before them and they feel that this knowledge will compromise their impartiality on the bench. Judicial candidates are further prohibited during their campaigns from donating money to any political party or candidate (other than to attend political events that cost $250 per ticket or less).

Quid pro quo is, at least in theory, prohibited.

Judges are required to recuse themselves if an attorney who is actively involved in fund-raising for their campaign comes before them during the campaign, and this recusal is mandatory, subject to remittal, for two years following the campaign if the attorney held a leadership or on-going role in the judge's campaign fund-raising activities. Judges are also expected to exercise the appropriate discretion to recuse themselves in any case where they doubt their ability to remain impartial. This last rule will cover any case in which a party involved in getting the judge elected might appear before the judge — a sort of catch-all that is meant to correct for cases where the nature of judicial elections might compromise the ability of the judge to remain impartial and independent. The idea is that the public is choosing someone to exercise the proper discretion in these cases.

The nature of judicial elections and the involvement of judges in political campaigns certainly creates a situation that might jeopardize the independence and the non-partisan nature of the judiciary. However, recent initiatives in New York seek to allay this problem, and include mandatory campaign ethics training for judicial candidates and a hotline that will answer the questions of judicial candidates in need of ethics advice. Judges face disciplinary action, once on the bench, if they fail to comply with their obligations while running for office. These resources at least make judges and judicial candidates more aware of their ethical obligations and more likely to comply.

Or so we hope.