Mark My Words: Justice for Sale

A recent by-product of the anti-union bill pushed through Wisconsin's state legislature has been a surge in interest for a local judicial election which usually only garners minimal attention.

In what is normally little more than a retention election, Wisconsin’s open supreme court seat held by Justice Richard Prosser turned into a highly contentious race almost overnight.  

Millions of dollars in special interest money intent on framing the fight as an extension of the union/anti-union battle has poured into Wisconsin, casting an unsavory shadow over the integrity of the judiciary. This politicization of what is supposed to be a non-partisan merit-based election serves as a stark reminder of the dangers of electing judges.

The Judiciary serves an important and unique role in our government. Alexander Hamilton called the courts the great “bulwark” which protected the Constitution and the Republic against legislative and executive encroachment. Judges were intended to serve as neutral arbiters, examining law and rendering judgment as impartial magistrates, not politically invested actors. To ensure continued independence, the Framers enshrined in our Constitution the idea that judges are to be appointed for life and never elected.

Unfortunately, while no federal judge stands for election, 39 states do elect their judges. This is a terrible and destructive practice that does nothing but put justice up for for sale to the highest bidder.

Because judicial elections have such immediate results (why lobby dozens of legislators when you only need a handful of judges?), special interest involvement has caused the cost of judicial elections to skyrocket. All of a sudden, candidates are forced to throw fundraisers to fill their campaign war chests while simultaneously staying impartial and neutral when hearing cases involving their donors.

In 2002, the CEO of a West Virginia energy company spent more than $3 million to replace an incumbent West Virginia supreme court justice with a relative unknown. Later that year, the newly appointed judge was the deciding vote in two cases that went in favor of the energy company resulting in outcomes worth $82 million. The decision was so blatantly corrupt that the U.S. Supreme Court threw it out, stating that the judge’s failure to recuse himself was a violation of constitutional due process. Despite the harsh admonition from the Supreme Court, West Virginia still elects their judges, and the judge at issue is still sitting on the state supreme court.

In 2006, a record-breaking election for the chief justice position in Washington state shocked ethics watchdogs when a race between a long-serving incumbent and his big-business backed challenger resulted in nearly $3 million spent, more than doubling the previous record set just two years prior. A spokesman for Justice at Stake, a Washington, D.C.-based group pushing to keep politics out of court races stated that “you're going to have more money in your Supreme Court campaigns than I suspect anybody thought was possible.”       

Imagine what those watchdogs must be thinking now. As of yesterday, over $5 million in special interest money has already been spent on the Wisconsin race to unseat incumbent Justice David Prosser, shattering the previous Wisconsin record of $3.38 million.  

Judicial integrity depends on the public belief that judges are impartial and have no personal stake in the outcome of a case. How is the public supposed to believe that either Prosser or his opponent, JoAnne Kloppenburg, will give the union legislation at issue a fair shake when it hits the high court’s docket? Regardless of this election’s outcome, public trust in the fairness of our judicial system will be irreversibly shaken and will never recover until we stop electing our judges.
           
Photo CreditWikimedia Commons

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Mark Kogan

Mark is a lawyer and Mic contributor living in Washington, D.C.

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