Raising Money: Judges on Campaign Trail

While Texas courts have been the focal point of a national debate over the perils of politicizing the judiciary, "the increase is dramatic across the country," says John Martin, chairman of the American Bar Association's (ABA) year-old Task Force on Lawyers' Political Contributions. For example, campaign costs for the Wisconsin Supreme Court have swollen by more than 784 percent since 1979, according to the ABA. In Alabama, the figure is 786 percent since 1986.

For this reason, the American Judicature Society in Chicago has argued for an appointment process combined with merit selection commissions to fill judicial vacancies. Yet many court watchers - including Mr. Borges - say the system of electing judges needs to be fixed, not thrown out.

"The process is political now, but a system that appoints judges through the legislature or the governor is just as political," he says, alluding to the partisan politics in US Supreme Court and appellate appointments. "This way, at least, it's going on where people can see it and decide to do something about it, and not in some back room somewhere."

Potential reforms

There are numerous ideas for reform. A report by Mr. Martin's task force, for instance, for the first time calls for a number of reforms for judicial elections. They include the recusal of judges who receive excessive campaign contributions from parties before their court and fund-raising "blackouts" until the beginning of the campaign season, so that judges are not eligible for political gifts during their whole tenure.

Another compromise solution is the retention election. This yes-or-no vote at the end of each term is intended to preserve voters' prerogative to weed out unsatisfactory judges while dispelling the political crowd surrounding contested ballot races.

For the most part, retention elections have had the desired effect, says Seth Andersen, director of the Judicature Society's Hunter Center on Judicial Selection. But he cites the case of a much-respected Tennessee supreme court justice as an example of what can go wrong when one highly charged issue consumes public opinion. The justice lost her seat in 1996 in a retention election because of a single decision commuting a death sentence for lack of evidence.

"What we've learned is the critical component of a retention election is having meaningful, objective, and comprehensive information about a judge's total job performance before the voter," Mr. Andersen says. Five states - Alaska, Arizona, Colorado, Utah, and, as of this election cycle, Tennessee - currently accomplish this by distributing voter guides to the public, compiled by an independent committee of judges, legal professionals, and other citizens.

"These states have greatly reduced the cost of running a campaign, which reduces the appearance of impropriety," Andersen says. "It may be the best system we've got going ... right now."

STATES THAT ELECT SUPREME COURT JUSTICES

Alabama

Arkansas

Georgia*

Idaho*

Illinois

Kentucky*

Louisiana

Michigan*

Minnesota*

Mississippi*

Montana*

Nevada*

New York

North Carolina

North Dakota*

Ohio*

Oregon*

Pennsylvania

Texas

Washington*

West Virginia

Wisconsin*

* Nonpartisan elections

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