A 'People's Pledge' Could Quell The Politics in Judicial Elections (The National Law Journal)

Imagine you win a big verdict at trial. But then, when the decision is appealed, you find out the judges who will be hearing your appeal took contributions for their campaigns from your opponents in the lawsuit — or that your opponents spent thousands or even millions of dollars on political advertising to elect those judges. Would you feel you were going to get a fair and impartial hearing in court?

We wouldn't.

We come from different perspectives. One of us is a Republican who worked in the Reagan Justice Department and served as general counsel to Sen. John McCain's presidential campaign. The other is a Democrat who worked as policy director and senior counsel to candidate and Sen. Elizabeth Warren.

But we can agree on this: The U.S. judicial system should be impartial. Litigants in our courts should never have to wonder whether they receive a fair hearing, or that the judge has been picked by the other side in the case.

But, unfortunately, money is increasingly defining judicial elections — and calling into question whether the courts can be seen as fair and impartial. In the 2011-12 state supreme court elections, for example, interest groups and political parties spent $24.1 million on advertising supporting or attacking judges, according to the Brennan Center for Justice. That amounted to 43 percent of all spending in those elections, and more than twice the amount they spent in the 2010 cycle. As the amount of interest group money goes up, so too does the likelihood that judges will be swayed, consciously or subconsciously, if their supporters appear before them in court.

Commentators have pointed out that selecting judges by merit or requiring stricter recusal practices when judges have been supported by a litigant could help solve this problem. Although states could move toward merit selection, few have shown a willingness to do so. Justice Sandra Day O'Connor has championed merit selection, but it often finds inadequate support among voters, who like the idea of being able to vote for judges (even if they have never heard of them before). Twenty-two states elect at least some of their appeals court judges in competitive elections (eight are partisan, 14 are nonpartisan). Ten states have competitive elections for some trial court judges. Including retention elections, a total of 39 states engage in judicial elections of some kind, according to Justice at Stake.

Requiring recusal from cases is equally challenging. Recusal practices vary state to state and judge to judge, and the Supreme Court has said that the failure of a judge to recuse herself is only a constitutional problem in the most extreme cases.

We think there is another answer — one that candidates in judicial elections should adopt and citizens should demand. We propose that judges running in competitive elections should adopt the People's Pledge, which was first tried in the 2012 Massachusetts race between then-Sen. Scott Brown and Sen. Elizabeth Warren. Under the People's Pledge, each candidate agrees that if an outside group spends money on television, radio or Internet ads in an election, the candidate who benefits from the ads will pay — from the candidate's own campaign treasury — 50 percent of the value of the advertising to charity.

In other words, both candidates would tell outside groups: I'm pointing a gun at myself, and if you try to help me, I'll have to shoot. So don't spend money on ads for me or against my opponent, please!

Impartially Applying the Law

The case for the People's Pledge is strongest in judicial elections. Although we both think there is too much money in politics, in legislative and executive elections Americans should be able to press their preferences and interests on their future representatives. But the courts are different. Judges are not representatives. Their job is to faithfully and impartially apply the law, even if the verdicts go against powerful interest groups, well-connected individuals, popular opinion or their own deeply held beliefs. "Equal Justice Under Law" should mean exactly what it says.

How would the People's Pledge work in judicial elections? In states with competitive judicial elections, candidates at every level should propose to their opponents that they adopt the People's Pledge because they are committed to ensuring a fair and impartial judicial system. The pledge would signal that they do not want to be swayed — or have the appearance of being swayed — by outside groups. Candidates who refuse should be called out for opposing a level playing field in our courts.

To be sure, the People's Pledge isn't a silver bullet. Judicial elections still force candidates to hustle for campaign contributions. The pledge would only apply in competitive races, not retention elections. And in some situations, outside groups might refuse to respect the pledge. But given that broader reforms are unlikely in the short term, we think the People's Pledge is a promising second-best solution.

Americans should be able to trust that judges and courts will be fair and impartial. Justice shouldn't be left to the highest bidder. Candidates for judgeships should pledge that they agree.

Trevor Potter is president of the Campaign Legal Center in Washington and served as Sen. John McCain’s general counsel in 2000 and 2008. Ganesh Sitaraman is an assistant professor at Vanderbilt University Law School and served as policy director and senior counsel to candidate and Sen. Elizabeth Warren from 2011-2013.  This opinion piece originally ran in The National Law Journal on November 3, 2014. To read it there, click here.