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January 11, 2005

Judicial Reform is Not for the Short-Winded

By David Rottman

Dear Alex,

It is a pleasure to join you in this dialogue on what can be done to improve judicial selection. That improvements are needed, no one can doubt. The 2004 judicial elections demonstrated again how far we have moved from the days—which rather strikingly encompass the years included in your provocative research on tort awards—when judicial elections “were as exiting as a game of checkers . . . played by mail.” Last year, one individual contributed over $2 million to a single West Virginia judicial race (the previous record for an individual’s contribution appears to have been $200,000 in a 1982 Texas race). Also last year, two candidates running for an open Illinois Supreme Court seat spent a combined $9 million (not including political party and third-party contributions), more than was spent in most U.S. Senate races. Afterwards, the winner reflected on the spending: “That’s obscene for a judicial race. What does it gain people? How can people have faith in the system?”

In replying to your message, voicing my own point of view and not that of my employer or any other organization, I will focus on the hurdles to judicial selection reform. In doing so, I want to be optimistic but realistic. I hope that our subsequent exchanges can move on to a consideration of what should be done and what can be accomplished.

First, I note that the nature of the incentives for judicial behavior embedded in any judicial selection system appear to be very subtle, too subtle in my view to point a clear path to reform. Let me take an example from the criminal justice area. Sentencing decisions by Pennsylvania trial judges “become significantly more punitive the closer they are to standing for reelection.” Wanting to avoid giving a sentence that might draw attacks as soft is an understandable incentive, yet these are judges are facing retention elections (in which they run against their own record, not an opponent) and come at the end of a ten-year term. See G. Huber and S. Gordon, “Accountability and Coercion: Is Justice Blind When it Runs for Office” American Journal of Political Science, Vol. 48, No. 2, April 2004: (p. 261). It is arguable that any appointive system short of life-tenure is likely to exhibit the same tendency to become more punitive if there is the prospect of reappointment or promotion.

The incentives facing the judges who presided over tort trials in a partisan election state seem subtler still. The disadvantage experienced by out-of-state defendants is attributed to subtle cues judges give in, for example, jury instructions or rulings on evidence. But trial judges in most partisan-election states rarely faced an opponent in the 1980s and 1990s; many still run unopposed, and few contested races attract large contributions. For example, in partisan- election State Texas, of 481 sitting trial judges in 1993, over 80 percent were unopposed in both the primary and general election when they first ran. Of judges who initially were appointed, more than half had never had an opponent in either the primary or a general election. In Arkansas another (until 2000) partisan election state, between 1976 and 1988, 88 percent of judicial candidates ran unopposed. [Sources available on request].

Arkansas and Texas also demonstrate the variability across the country, and also by city and region within states as well, in the reliance judicial candidates place on lawyer campaign contributions. The ABA Commission on Lawyer Contributions to Judicial Candidates (Table 2 in Appendix 3) in 1999 summarized the limited (relative to appellate races) data on contributors to trial level races. Between 1976 and 1990, lawyers contributed 10 percent of the funding for Arkansas judicial races. During much the same period, 69 percent of contributions to candidates in Dallas County, Texas District Court races came from lawyers or law firms. The Commission summarized its findings in this manner: “often attorneys account for large proportions, often even over 75% of the contributions to judicial candidates; but it is also true that often attorney contributions total only a minor fraction.” Even for state Supreme Court races the dominance of lawyers as campaign contributors cannot be assumed. In a five state study (Alabama, Idaho, Montana, Texas, and Wisconsin) between 1994-1999, for example, “lawyers and lobbyists” accounted for 23 percent of all campaign contributions (The National Institute on Money in State Politics, “Sources of Judicial Campaign Funds—A Brief Overview”, 2002).

It seems likely that many if not most of the judges presiding over tort trials in at least some partisan election states do not experience a direct and strong motivation to reward in-state plaintiffs in exchange for lawyer contributions. For a non-economist, the tendency might be to locate the explanation the differential treatment by recourse to a set of shared expectations that emerge among judges operating in a partisan election system. I do not put this “cultural” approach forward as offering a satisfactory explanation of why some litigants might be treated differently than others. I merely note that the behavior of judges comes in response to diverse and cross-cutting cues. Indeed, perhaps the best book on the topic is Lawrence Baum’s The Puzzle of Judicial Behavior (University of Michigan Press, 1997). [By the way, my colleague, Gene Flango, has written about the possible role of legal culture in a related context. See his article, “Attorneys’ Perspectives on Choice of Forum in Diversity Cases, published in Akron Law Review Vol. 25, No. 1, 1991].

Second, I note that judicial selection reform necessarily proceeds on a state-by-state basis. Each electoral system is unique, a compromise between holding elections for judicial office and steps that ensure that judicial elections are different from those held for the political branches. Each state that elects its judges adopted by Constitutional provision or statute limitations on how judicial candidates can campaign and how judges can act in office. Provisions include uniquely lengthy terms of office, prohibitions against running for non-judicial office while serving as a judge, and “blind” campaign fundraising in which the judicial candidate is shielded from knowing the names of their financial supporters.

Judicial elections are different because the role of judges is distinct from legislators or executive branch officers. Undoing a historical compromise, again unique to each state, and often by level of court or to specific regions within states, is not to be undertaken lightly. Simply put, we should not tear down fences before we know the reasons they were built. An implication of this argument is that there the development of national models for judicial selection, while not unworthy activities, is unlikely to be a major force for change in how judges are selected.

Third, no state that has chosen to elect its judges has ever subsequently opted for a fully appointive system for its judiciary. To shorten a reply clearly headed for undue length, I quote the recently expressed views of the distinguished historian of American law, Kermit Hall: expresses the dilemma were face in this way.

"Critics of judicial elections have created what they call the Rule of 80. It holds that: 80 percent of the electorate does not vote in judicial elections; 80 percent is unable to identify candidates for judicial office; 80 percent believes that when judges are elected, they are subject to influence from their campaign contributors; and finally and most importantly, 80 percent of the public favors electing judges."

This is a heavy dose of realism. It is frustrating to believe than only incremental change is feasible, given the magnitude of what so many agree needs to be changed urgently.

It was New Jersey’s Chief Justice Vanderbilt, back in the 1930s, who offered the truism that “judicial reform is not a sport for the short-winded”. But then I am by virtue of my place of employment and work experience, something of an insider. The entry of economists into the study of judicial selection and behavior is welcome not just for offering us new theories and data, but also perhaps a more optimistic reading of the potential for change. So before going into any details about the kinds of reform programs that seem feasible to me, I would be grateful for your views on the breadth of changes we can hope to accomplish in responding to the demonstrated problems associated with judicial elections.

Regards, David

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.