Saturday, December 11, 2010

Campaign Contributions to Judges: Improving the Third Branch or Touching the Third Rail?

This post originally appeared in the Huffington Post.

A new survey indicates that a majority of members of both parties think that judges are influenced by campaign contributions. To state the obvious, this is bad news.
Our government is one of checks and balances, and the judiciary branch is one-third of that system. The judiciary, arguably more than any other branch, should be above politics. This is why federal judges have lifetime appointments. The rationale is that this allows judges to make decisions based only on what is right and correct under the law, and not based on what will benefit that judge's contributors or help that judge win the next election.
Whether or not some judges actually are influenced by campaign contributors, the perception that they are is lethal. How can we be expected to play by the rules if we don't think the rules will apply equally to all of us?
Justice for sale is no justice at all. Reform may be necessary to combat the toxic perception that the wheels of justice turn only for those with money. The judicial branch is designed to among other things; uphold unpopular views in the face of a challenge from an angry majority. Simply put, the judiciary is the last stop on the road to the tyranny of the majority.
What can we, as citizens, do to ensure the integrity of the judiciary? The good news is that there are many options. The bad news is that none of them represents a silver bullet.
One option is to give all state judges lifetime appointments, just as their federal bench brethren enjoy. The public will likely be reticent to adopt this approach, as they like the power to choose their judges and determine whether or not they will keep their jobs.
Another option is to provide judicial candidates with full public campaign financing. This could go a long way towards reducing the appearance of corruption as it could all but eliminate the need for judicial candidates to raise campaign contributions. However, the question remains whether money, like water, will always find a way. Critics of this approach will also likely argue that public financing will merely force campaign money underground.
Another approach, perhaps a middle ground, is to increase disclosure of contributions made to, and independent expenditure made about, judicial candidates. We could increase disclosure so that anytime a judge hears a case in which one of the lawyers or one of the parties was a campaign contributor, that information is disclosed online for anyone and everyone to see. Increasingly, the name of the game may be more and better information. There is no substitute for a citizenry armed with information.

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