Judicial independence

In light of increasingly “ugly” and “expensive” judicial elections such as the recent Wisconsin Supreme Court justice race, states should be permitted to impose more limits on judicial campaign spending than they do on other types elections, write University of California, Irvine law school dean Erwin Chemerinsky and Hofstra law professor James J. Sample in The New York Times.

“More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts,” the op-ed explains.

Chemerinsky and Sample urge advocates for abolishing judicial elections to “come to terms” with the reality that “judicial elections are here to stay,” and instead focus their energy on “incremental changes” that will reduce the influence of money on judges. (A New York Times editorial published last week urged the use of a merit panel rather than election to select Wisconsin’s judges.)

They explain that while states are permitted to impose limits on direct contributions by persons to candidates, states are not permitted to set restrictions on outside spending. Such indirect spending to candidates is ever-increasing: In 2008 for the first time, spending by non-candidate groups nationally exceeded spending by candidates on the ballot.

“In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging,” they write. “Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”

Read the full article here. For more on judicial selection, see an ACSblog video interview with Justice at Stake Executive Director Bert Brandenburg on Caperton v. Massey, a 2009 Supreme Court decision on judicial conflict of interest referenced in the op-ed.

By Martha F. Davis, Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis is also co-author of the recent ACS Issue Brief, "Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives."

Last November, Oklahoma voters approved an amendment to their state constitution that would bar state judges from considering international and foreign law, including Shariah Law.

Quickly enjoined by a federal district court because it violates the first amendment, the electoral success of Oklahoma's provision has nevertheless triggered a wave of copy-cat proposals in states across the country, from Arkansas to Wyoming.

Since citations of Shariah law and international law are hardly rampant in state courts - indeed, no Oklahoma court has ever relied on Shariah law - legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.

One possibility is that these proposals are simply veiled attacks on the judiciary. Certainly, by associating state court judges with Shariah law and international law, they engage in a post-9/11 form of red-baiting: the measures paint a picture of state judges who are both unprincipled and disloyal to the U.S., favoring international litigants and supporting terrorists through domestic enforcement of Shariah law. Lawyers and the educated public should know that it's an absurd picture in light of the extensive vetting given state judges before they take office; whatever their faults, none of these judges are foreign agents and terrorist sympathizers - and if they were, they would surely be engaged in activities far less obvious than citing Shariah law in a few common law cases.

Still, this broadside attack will inevitably have a chilling effect on state court judges, perhaps discouraging them from even traveling abroad and engaging in cross-border dialogue with foreign judges lest they risk accusations of "considering" foreign legal systems in their decisions. It is through this "chill" that proponents of these measures hope to reinforce notions of American exceptionalism, i.e., the idea that U.S. courts have nothing to learn from their international counterparts.