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Selling judges

I remember seeing an ad about twenty years ago for a common pleas judge who was running for the appellate bench.  It showed him slamming the door of a jail cell occupied by some evil-looking miscreant, the obvious implication being that the judge's rulings would heavily disfavor the criminal class.  A bit over the top, but those types of ads in judicial campaigns were exceedingly rare; most simply featured the candidate and his Stepford family in front of a somewhat modest but well-kept house, with him telling us how he was diligent and trustworthy and had several other attributes normally attributed to the Boy Scouts.

That was then.

England just finished a national election in which the campaign was six weeks long and candidates weren't allowed to advertise on television.  We don't do things that way, as anybody who watches the local television news during an election year can tell you.  The influx of money and sophisticated campaign advertising techniques has flowed into judicial campaigns as well:  candidates for judicial office spent over $206 million between 2000 and 2009, double the amount for the previous decade.  State supreme court candidates raised $45 million for their campaigns in the 2007-2008 election cycle, more than seven times what they had twenty years earlier. 

And the chains which limited what judicial candidates could say were removed by the Supreme Court's 2002 decision in Republican Party v. White, which held that a Minnesota canon of judicial conduct that prohibited a candidate for judge from "announcing his or her views on disputed legal or political issues" violated the First Amendment.  That decision was in keeping with the development of the theory first espoused in the Court's 1976 decision in Buckley v. Valeo, that spending money on campaigns was a form of speech. 

Whatever the merits of that theory, one would be hard-pressed to make the argument that it has improved the level of political discourse.  Complex issues are reduced to 30-second attack ads -- this candidate wants to set up panels to decide which old people to kill, that candidate wants to take away their money so they die from starvation or lack of medicine. 

And any hope that judges would remain above the fray, that they'd use their newfound ability to discuss the standard of review for 404(B) evidence or the good-faith exception to the exclusionary rule, has long gone a-glimmering.  To be sure, a lot of the earlier ads were directed at the one supposed indispensable quality for a judge, impartiality:  this judge is in the pocket of the insurance industries, that judge is in the pocket of the personal injury lawyers.

Now, we have ads like the one run against Kentucky Supreme Court Justice Janet Strumbo accusing her of "siding with criminals 59 percent of the time."  (Another ad accused her of using her maiden name -- oh, the humanity!)  Particularly pernicious was an ad against Bridget McCormack when she ran for Michigan Supreme Court justice.  In it, the widow of an American soldier killed in Afghanistan takes McCormack to task for helping to "free terrorists."  (McCormack had represented detainees held at Guantanomo.)

For the most part, candidates can avoid getting down in the muck themselves:  recent Supreme Court decisions, like Citizens United, have opened the floodgates for private groups to fundraise, and most of the heavy damage any more is done by partisan groups supposedly unaffiliated with any of the candidates:  in the 2012 election, while only 2 percent of candidate ads and 11 percent of party-sponsored ads were negative, nearly half of the ads run by outside groups were attack ads.

And it's notable that while ads claiming that judges favor big insurance companies or big plaintiffs' firms haven't disappeared, they've taken a back seat to those directed at the opposing judge's sympathies for child molesters or killers; campaign strategists note that these types of ads are especially effective in "motivating" voters.  That's derived from the old axiom in crime and politics that nobody ever lost an election by being hard on crime, and it seems to be proving out:  a recent study found that as the number of ads aired in state supreme court judicial elections grows, the justices become less likely to vote in favor of criminal defendants.  A doubling of ads results on average in an 8 percent decrease in rulings favorable to criminal defendants.

There are only three states in the country which allow a judge in a capital case to override a jury's recommendation of life in prison and impose a death sentence instead:  Alabama, Florida, and Delaware.  It's never happened in Delaware, and it hasn't happened in Florida since 1999.

It happens in Alabama about twice a year. 

The Supreme Court took a pass on ruling on the constitutionality of that in 2013, denying cert in Woodward v. Alabama.  It's worth looking up the case for Sotomayor's dissent, which notes that several studies showed that there was "a statistically significant correlation between judicial override and election years in most of the counties where these overrides take place." 

The debate over electing judges has gone on for years, and it's not really anywhere, certainly not in Ohio.  After three overwhelming referendum defeats on the issue in the past few decades, Chief Justice Maureen O'Connor threw in the towel and didn't even include it in her latest call for judicial reform.  There are arguments on both sides, I suppose, but the argument that electing judges, especially under the current scheme, makes them more likely to kill people would certainly seem to tip the scales.

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