Public Notice Detail
Judicial Independence vs. Judicial Selection: Due Process in the Balance
Posted: Thursday, November 15, 2001
Associate Justice Alan C. Page
National Press Club
November 15, 2001
Thank you, Richard [Ryan], for that kind introduction and for your warm welcome. I’d also like to thank the National Press Club for the invitation to speak with you. Finally, I’d like to thank my wonderful wife Diane and my family, some of whom are here today, for their support over the years.
I am honored to have the President of the National Center for State Courts, Roger Warren, joining us at the head table this afternoon. The National Center is celebrating its 30th anniversary this week, and I consider it a privilege to be a part of their activities.
Over the last three decades, the National Center has become an indispensable resource for state courts, and it is fitting that we acknowledge their contributions to this country’s judicial branch. Coming from a state that has often drawn upon their staff and resources for research, evaluation, and information, I understand the importance of their efforts to improve the administration of justice at all levels.
One of the important issues the National Center has focused on in recent years is the interplay between judicial elections, judicial independence, and the public’s trust in the judiciary. And that is what I’d like to focus my remarks on today.
Let me preface my remarks by saying that I believe judicial elections in our state courts are here to stay. And I am not here this afternoon to advocate their elimination. Clearly, they have served us well over the years. With the advent of big-money campaigns, however, and the problems associated with judicial candidates’ involvement in campaign fundraising, the advocacy of unlimited judicial campaign speech, and the presence of party politics in judicial elections, the public’s trust and confidence in the judiciary is being eroded and, thus, our democracy threatened. Judicial power does not come from the barrel of a gun and, unlike the legislative and executive branches, we do not have the power of the purse or the police power. Judicial power comes from the people’s trust and confidence in what judges do and the way they do it.
Now, some of you in the audience may be saying to yourselves, wait a minute. There’s obviously something wrong with this picture. I’m sitting here at a National Press Club luncheon listening to a former professional football player talk about the judiciary. A defensive lineman, at that. We all have this image that football players generally aren’t the brightest bulbs on the porch. And, for sure, those defensive linemen have all been hit in the head at least one too many times.
As such, I’d like to provide you with some background on why I am standing here today.
Long before my career in football, I had an interest in the law. Growing up as a black child in Ohio during the 1950s, I noticed that the law could play a significant role in our lives.
I have vivid memories of reading newspaper articles about Brown vs. Board of Education as a nine-year-old. From that case, I developed a sense of the real power that judges have and the importance of what they do. For me, that power was hope. Hope that, if an educational system could be changed in the South, it could be changed anywhere. Hope that fairness could prevail and that issues related to race might one day be resolved. Hope that the judicial system and its judges were something I could trust.
As I look back, some of the ideals I developed as a child may have been naïve, but, as I continued to learn about the courts, I came to believe even more deeply in the principle of “equal justice under the law.” These weren’t just words to me. They had meaning . . . they still do.
As I saw it, judges were the only ones who had the power to ensure that fairness “happens.” Even before I was old enough to understand what it was all about, I had an impression that fairness was dependent upon impartiality and that this, in turn, was why we could trust judges.
Keep in mind that I grew up at a time and in a place where young black American males were not particularly trusting of the government. Whether it was bureaucracies that could not be depended on or politicians who weren’t interested in issues that affected us. And the police, well . . . it’s enough to say that they were never trusted.
But the courts . . . ? Now there was an institution that we hoped we could trust.
As I continued down my educational and career paths, I thought a lot about these intertwined concepts of trust and fairness. Above the doors to our state’s supreme court chambers are the words, “where law ends, tyranny begins.” Over the years, I have come to believe that the law ends precisely where the justice system has failed in its duty to ensure impartiality and fairness.
It is with this background and these beliefs that I sought election to a seat on Minnesota’s highest court. I should emphasize that I was elected, rather than appointed by the governor, which is traditionally the way judicial seats are filled in Minnesota.
I should also point out that there was nothing traditional about my election. I had to sue the governor and the secretary of state just to get my name on the ballot. Given what I had to do to pursue election, I was aware that the visibility of my candidacy could open a Pandora’s box of judicial campaign issues that go to the heart of a judge’s independence. Nonetheless, I was willing to take that risk because I thought I had something to offer and I believed that an effective campaign could be waged without casting doubt on my ability to be impartial.
With that background, let me begin.
In the vast majority of states across the country that use some form of election to select or retain their judges, independence and impartiality are under attack. Not from those who would seek the violent overthrow of our system of government, but from judicial candidates and others who would substitute their personal, partisan, economic, or social agenda for the rule of law.
The roots of an impartial and independent judiciary are deeply embedded in our American democracy. They extend even to pre-colonial times. As far back as 1607, Lord Chief Justice Coke ruled that even King James I of England was not above the law. Although the king removed Coke from the bench for this ruling, the Glorious Revolution later that century gave judges more latitude in disagreeing with the monarch and fortified the separation between the powers of the crown and those of the courts.
Upon this groundwork, our nation’s founders built our system of government. Signaling the sanctity of judicial independence, the Declaration of Independence grieved of George the 3rd’s interference with the judiciary in the colonies. Judicial independence was prescribed to prevent any outside influence from dictating the rulings of judges. Alexander Hamilton pointed this out in Federalist No. 78, saying “this independence of the judges is equally requisite to guard the Constitution and the rights of individuals.”
These tenets are as vital to our democracy today as they were in the late 1700s. We should be mindful of their guidance and strive to guarantee the impartiality and independence of the judiciary through the judicial selection process. Reform of state rules governing judicial campaigns is critical.
The first area in need of reform is funding of judicial campaigns. In some states, judicial candidates raise money for their own campaigns and, as a result, know exactly what groups and what persons contribute.
When a judicial candidate knows who contributes to the campaign, he or she may feel pressure to repay those contributions from the bench. In the words of a former justice of the Texas Supreme Court, “If you don’t dance with them that brung you, you may not be there for the next dance.” The very appearance that judges may be the puppets of their campaign contributors imperils the independence of the judiciary and weakens public trust and confidence in our system of justice.
We have seen an alarming increase in money spent on judicial elections. For the 2000 election cycle, state supreme court candidates alone raised more than $45 million. This represents a 60% increase over the previous cycle. Spending records were set in half of those states that held supreme court elections that year. Looking at the five states that had the most contested, political, and visible supreme court races in 2000, more than $16 million was spent on campaigns by non-candidate groups, including so-called issue advocacy groups.
Following these elections, various groups bragged about their ability to influence state supreme courts and trial courts. In one Midwestern state, a manufacturing association sent out a newsletter proclaiming that contributions from its political action committee had “swayed the Supreme Court election to a conservative viewpoint, ensuring a pro-manufacturing agenda.”
This growing trend of using campaign contributions to influence judicial decision-making is dangerous not only for state court judges, but for the public as well. Studies have shown a growing concern on the part of citizens that these ever-increasing sums of money are breaking down the fairness and impartiality of our judiciary. A 1999 survey by the National Center showed that nearly 80% of Americans believe that “elected judges are influenced by having to raise campaign funds.” This widespread belief is completely antithetical to the unbiased role the judicial branch must fulfill.
There is no perfect system for financing judicial campaigns, but there are certain procedures that go a long way toward eliminating exploitation of the process. For example, states could not only prohibit candidates from personally soliciting or accepting campaign contributions, but also prohibit them from knowing who contributes to their campaigns. Such a rule would, in effect, prevent judges from knowing who brought them to the dance. I can see by the looks on your faces that you think judges will peek. I suspect that those who would peek would be the exception, rather than the rule. You see, there is no real benefit in knowing where the money comes from. Moreover, life is a lot simpler not knowing.
For the sake of judicial independence and impartiality, states must take steps to erase the corrosive potential of money in judicial campaigns.
The second area I’d like to discuss is campaign speech. More and more we are seeing statements made by and for judicial candidates tainting the public’s trust in the ability of judges to remain impartial.
In recent state judicial elections, we have reached new lows in campaign speech. Literature sent out by political parties and other outside groups urged voters to take note of the “pro-business,” “pro-union,” “pro-life” or “pro-family” candidate. These labels are designed to suggest that the candidate harbors a certain bias, and that this bias, rather than the law, will serve as the foundation for his or her judicial decisions. There isn’t much we can do to prevent outside groups from making statements during judicial campaigns; the First Amendment protects their right to do so. However, we can and should expect candidates to forcefully disavow any statement by such groups that suggests that they will decide cases based on anything other than the facts of the case and the law before them. If judicial candidates aren’t willing to disavow such statements by outside groups, I think that tells us something about their willingness and ability to be unbiased.
We should demand an even higher level of responsibility when it comes to statements made by judicial candidates themselves. Judicial candidates behave irresponsibly when they willfully misrepresent their opponent’s record. If someone is capable of making misleading or distorted statements during a very visible campaign, one can only imagine what they will do once on the bench.
It also disturbs me to hear a candidate promise to decide a case in a particular way just to appeal to voters. By declaring their positions in advance, aren’t judicial candidates signaling to voters their inability to faithfully execute their judicial duties? Campaign promises of this sort make it doubtful that such a person could serve in a fair and impartial manner. For the judiciary, there is danger in the arrogance of the judge who knows what the outcome of a case should be, not because the facts and law lead the judge to that outcome, but because of some pre-ordained belief or philosophical predisposition.
There are some who argue that judicial candidates are unduly restricted when they cannot espouse their viewpoints and opinions. Judicial candidates are indeed restrained from taking advantage of the full breadth of the First Amendment, but with good reason: Making statements in a way that suggests how one will rule on a case renders a judge absolutely unable to comply with one of the key requirements of the job — being impartial and fair. The question is not whether judges have personal views, the question is whether they can and will set those view aside.
Now, there are a number of questions the public should be asking and candidates should be answering that have absolutely nothing to do with politics, promises, or platforms. The questions that really matter include:
- Will the candidate be fair?
- Can the candidate set aside his or her own views and analyze the law as applied to the facts in the case?
- Will the candidate work hard and execute his or her duties ethically?
- Does the candidate have the temperament to do the job?
- Why does the candidate want the job?
- What are the challenges facing the judiciary and what does the candidate see as solutions to those challenges?
- What is the candidate’s background—both in terms of legal experience and public life?
Unsatisfactory answers to these questions should raise a red flag with voters. So, I would encourage you to not only ask these questions, but to listen carefully to the answers provided.
The final area I would like to address is partisan judicial elections. Currently, at least 16 states utilize political parties in the election, retention, or endorsement of judges. The problem is obvious, with party politics in play, judges feel pressured to adopt a partisan agenda.
In one state, for example, a trial court judge switched from the Democratic to the Republican Party and issued a press release outlining his reasons for doing so. In his appeal for Republican voters and support, he said the following:
The truth is that I have noticed in recent years that the Democratic Party places far too much emphasis on representing minorities such as homosexuals, people who don’t want to work, and people with a skin that’s any color but white. Their reverse discriminatory quotas and affirmative action, in the work place as well as in schools and colleges, are repugnant to me . . . I believe the time has come for us to place much more emphasis and concern on the hard working taxpayers of this country.
It is difficult to fathom even the possibility of getting a fair trial in front of a judge who has made such a statement. While thankfully this is an extreme example, it is a foreseeable outcome of an environment that invites, rather than rejects, partisan influence.
A December 2000 national summit on improving selection, sponsored by the chief justices from the 17 most populous states in the country where judges are elected, recommended that all judicial elections should be conducted in a non-partisan manner.
The judiciary simply cannot be impartial or trusted when party politics encourages judges to behave as traditional politicians. This is not because judges are in any way better than other elected officials, but because our role is distinctly different. Whereas executive and legislative officials commit themselves to enacting their political agendas, a judge’s role is to interpret the law fairly and ensure due process to every litigant.
Edward Ryan, a former Chief Justice of the Wisconsin Supreme Court and delegate to that state’s constitutional convention in 1846, perhaps said it best. He said that the judiciary “represents no man, no majority, no people. It represents the written law of the land . . . it holds the balance and weighs the rights between man and man, between rich and poor, between the weak and the powerful.”
More recently, Mario Cuomo, former governor of New York, gave recognition to the unique function of the judiciary when he said, “The judicial system is different from the political branches of our government – and that difference makes all the difference to our strength and glory as a democracy.”
The judicial branch is different, and its functions are unique, because judges do not represent traditional constituencies.
Unlike the executive and legislative branches, the judicial branch is not majoritarian. A judge’s only real “constituencies” are the state and federal constitutions. That’s it. Therefore, the expectation that a judicial candidate must lure other constituencies – like voters, political parties, or special interest groups – by suggesting that he or she would consider anything other than the facts of the case and the law runs contrary to the judiciary’s unique role and a judge’s constitutional duty.
We in the judiciary often must uphold laws or rights that are unpopular. Indeed, we may disagree with the wisdom of some laws. But our responsibility is not to remake the law as we would prefer it to be. Our responsibility is to uphold the law and discharge our duties with integrity and impartiality, to exercise our judgment, not our will. We take an oath that requires us to do just that. It is an oath that judges take very seriously.
Because the judiciary, at times, must do what is unpopular, we are absolutely dependent on the public’s trust and confidence in our work. If we are to maintain that trust and confidence, we must eliminate the presence of party politics in judicial elections.
If there is nothing else that you remember from my remarks today, remember what this debate surrounding judicial elections is all about. It is not about weighing the value of free speech. Nor is it about measuring a citizen’s right to information. The real debate is about preserving the ability of a judge to be impartial and independent of outside influences.
These attributes are the very cornerstones of our judicial system. They ensure your constitutional rights. That is why we must take very seriously the issues of campaign fundraising, campaign speech, and partisan elections – nothing less than your access to due process is at stake.
When we cannot trust the judiciary and we have no confidence in due process, then we are well on our way to settling our differences in the streets. Without due process and the fairness it ensures, America will become like those countries across the globe where the rule of law simply cannot compete with the rule of power or the rule of fear.
We must preserve judicial impartiality and independence because these are principles essential to our system of government, which has been so carefully crafted. Not for the sake of judges, but for the sake of ensuring fairness.
Let me leave you with one last thought. If a young black child growing up in Canton, Ohio, has no hope that judges can make fairness happen, what then will be our future?
Thank you.