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Tuesday, April 19, 2011

Judges: You Get What You Pay For

You Get the Judges You Pay For
The New York Times OP-ED by By ERWIN CHEMERINSKY and JAMES J. SAMPLE  -  April 17, 2011

LEGAL elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials. An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench. In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”  The need to run multimillion-dollar campaigns to win election to the court in much of the country renders the crocodile ever more menacing. For more than a quarter of a century, voters have rejected efforts to move from an elective to an appointive bench. Last year, despite a campaign led by Sandra Day O’Connor, Nevada voters became the latest to reject such a change. Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford. Instead they should focus on incremental changes to what Justice O’Connor bluntly calls the “wrong” of “cash in the courtroom.”  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. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.  But this is only part of the financial story. Nationally, in 2008, for the first time, noncandidate groups outspent the candidates on the ballot.  Perhaps most tellingly, a study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races. The top five spenders in each of the elections laid out an average of $473,000.  In 2009, the United States Supreme Court dealt with this issue, holding that due process is violated when a judge participates in a case involving a party that spent a great deal of money on the judge’s election effort. The case before the court involved a West Virginia Supreme Court decision overturning a jury verdict that awarded a $50 million judgment against Massey Coal Company.  One of the justices in the majority of that 3 to 2 decision, Brent D. Benjamin, had been elected after Massey Coal’s chief executive spent $3 million on his campaign. The United States Supreme Court held, 5 to 4, that due process was violated because of the lack of an impartial decision-maker. The court made clear, however, that campaign spending requires the disqualification of a judge only rarely.  A year later, the high court held, in the Citizens United case, that corporations and unions have the First Amendment right to spend unlimited amounts of money in election campaigns. In light of these two decisions, corporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.  Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.  That solution has long been assumed to be off the table, though, because the Supreme Court ruled in 1976 that while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected. Nevertheless, large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice. The Supreme Court’s 2009 decision properly focused on the $3 million in campaign expenditures, not the $1,000 that was directly contributed. 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. 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. States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials. Erwin Chemerinsky is the dean of the law school at the University of California, Irvine. James J. Sample is an associate professor of law at Hofstra.

11 comments:

Anonymous said...

We have the best Judges money can buy!

Anonymous said...

Overall, we have the WORST judges money can buy!

Don't forget, there are some good judges!

Anonymous said...

you are right, the best lawyers and judges I ever spoke to outside the courtroom, not even representing me were the only one's that were truthful and told me my own lawyers and judges were crooks/corrupt and should be disbarred!

Anonymous said...

you are right, the best lawyers and judges I ever spoke to outside the courtroom, not even representing me were the only one's that were truthful and told me my own lawyers and judges were crooks/corrupt and should be disbarred!

Anonymous said...

and they didn't take a dime of my money for the truth!

Anonymous said...

and they didn't take a dime of my money for the truth!

Anonymous said...

can you get a better hacker, that doesn't double post!

Anonymous said...

My experience with decades of courtrooms and the arbitrators that sat there...cannot use the word judge as that definition can only apply to a higher moral being, in my existence..is that the Arbs.always decided cases using politically correct or influential determinations over 60%of the time. The law is something they save for those they want to abuse.
I have told every civil lawyer that has handled my ancient civil case, that it will take 90% dirt and 10%law to succeed...much to their distress, as they want me to believe that the law favors in court rulings.
They are well aware though, that that I have more courtroom experience then all of them combined..including my assigned Federal judges.
I am amazed that lawyers think that their law degree permits them to constanty lie and manipulate their client..even knowing that the client can out pace them in most legal arenas with daily education of the statutes...so why do these lawyers never get that some clients can better manipulate them... even the most expert counselors?!
My heart goes out to those who must retain attys and have little or no legal or court familiarity, because these guys get off steering cases the way that always benefits them, their freedom on the job or the benefits of the Arb. and the court!

Anonymous said...

NYS Judges get an extra $10,000 which they can use for anything like new fancy robes (whats wrong with the old dirty bathrobes?), GPS units, phones, trips etc., how sweet it is! We are paying for all this on top of their salaries

Been there before said...

Elections aren't the problem. The problem is the media refuses to report the issues, the complaints against the judge/attorney candidate and the contested issues. Who's going to appoint the judges, the bar which fails to control its own ethics?

Anonymous said...

As if this is really news, even the police have an excuse for corruption and misconduct. It's the old "but everyone does it."


Didn't the state change the way tickets were handled many years ago to prevent this type of thing? Apparently it wasn't a foolproof system.

Now, the president of the police union is no going to be the sacrificial lamb for corruption.

He probably is correct about all those connected higher-ups asking for this "courtesy." It will be interesting to see how far and high this goes.

------

"Edward D. Mullins, the president of the sergeants’ union, has recorded an audio message calling on current and retired members of the force, across all ranks, to come forward with testimonials about the beneficiaries of ticket-fixing. He said he expected to find evidence that politicians, prosecutors, clergy members, business leaders, celebrities, athletes and others have been among those who have had tickets fixed, often with the help of top police officials."


"Mr. Mullins, in claiming that the ticket-fixing did not qualify as corruption..."


"Some lawyers described the fixing of tickets as criminal if it involved the destruction or obfuscation of government records."


http://www.nytimes.com/2011/04/20/nyregion/police-union-fights-back-against-an-inquiry-calling-ticket-fixing-a-courtesy.html?nl=nyregion&emc=ura1

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2