This article first appeared in the St. Louis Beacon, Feb. 16, 2010 - In Citizens United v. F.E.C., Justice Anthony Kennedy, writing for a 5-4 Supreme Court majority, concluded that limits on corporate expenditures aimed at influencing elections violate free speech. Ironically, in a case last year, Justice Kennedy sang a somewhat different tune.
Caperton v. A.T. Massey Coal Co. involved a judge running for election in West Virginia. One of the parties in a case headed for the West Virginia Supreme Court poured money into the race in support of the candidate he knew would be more likely to rule for him. His favored candidate won, yet the newly elected judge refused to recuse himself from the case. Justice Kennedy, writing again for a 5-4 court, said this couldn't stand: With money influencing elections, we can't suppose that judges would be impartial.
Kennedy's opinion in Caperton seemed to stand for a sound principle: Money and politics and judges don't mix well.
Judges, as much as they are able, should try to stay above politics. Famously, Missouri created the "Missouri Plan" to avoid exactly the type of problems involved in Caperton. In our system, judges on the Missouri Supreme Court are nominated by a panel of attorneys and one is selected by the governor. Judges are then subject to "retention elections." This system has been so successful at balancing popular accountability with professional independence that 11 states have copied the plan, and three others use modified versions of it.
But this system may change under a proposed constitutional amendment that would require the election of all our judges, even for the Missouri Supreme Court. With judges running political campaigns to win office, that would inevitably mean judges joining parties, raising money and slinging mud.
Cases like Citizens United provide us opportunities to think about what elections mean in our society. Supporters of the court's decision want to ensure that every person -- even a corporate "person" -- is free to express political ideas. Opponents worry that ordinary citizens will be shut out of the political marketplace, drowned out by corporations with unlimited cash. But in this debate we take it for granted that our representatives should ultimately be responsive to the people. We want our representatives to do what we say they should do. But that isn't so clear with judges, which is why we should be wary of proposals to elect them.
Judges, we think, should interpret the law; they shouldn't make a decision because it is popular or because it might win favor with voters or campaign donors. We want judges to be insulated from normal politics. Indeed, sometimes we even want judges to take a stand against popular opinion -- to stand up for the rights of the minority against majority tyranny. We might not agree with them when they do this; but we can respect them, perhaps grudgingly. And when we find ourselves in the minority, we're happy they are there to protect us.
Of course, judges should be subject to public accountability. We don't want them to be corrupt or incompetent or to stray wildly from our basic values. That's why governors appoint our judges; that's why we have retention elections; and that's why we have procedures for impeaching judges. But the standard for retaining judges shouldn't be whether they do what we like. The standard should be whether they have been impartial and responsible. Judges represent us by upholding broad principles such as due process, equal protection and liberty.
In states with judicial elections, judges tend to respond to popular opinion precisely in the way we don't want them to. For example, judges in these states tend to become more punitive in criminal cases as their re-election approaches. If you are convicted of a crime in a state with elected judges, the severity of your sentence may depend on your judge's election calendar or the public's mood. Surely, that's not how justice is supposed to work.
Proponents of electing judges paint the current Missouri process as controlled by trial lawyers. Even if there is a seed of truth to this, we shouldn't adopt a cure that is worse than the disease. Saying that trial lawyers rig the nominating process is an allegation that the process is too political. Surely the solution is not to make judicial selection wholly a matter of political campaigns, money and party bosses!
Interpreting our laws can be controversial, and there is good reason to question many decisions made in our courts. But we will not enhance the basic fairness and integrity of those institutions by creating a system that makes judging a matter of electoral politics. Instead, we should strive to give judges a place in our system that, at its best, transcends politics by preserving judicial independence.
Chad Flanders and Matt Hall are professors at Saint Louis University.