Money is pouring into Iowa, where a group called Iowa For Freedom is trying to oust three state Supreme Court justices who ruled that gay people can get married.
It’s been talked about as one of many emerging threats to the independence of the judiciary. And this morning at the annual National Association of Women Judges conference in San Francisco, a panel mulled over problems posed by judicial elections.
The panel – made up of Stanford legal scholar Pamela Karlan, state Supreme Court Justice Ming Chin, First District Justice Maria Rivera, Judith Resnik of Yale Law School, and Munger, Tolles & Olson partner Michelle Friedland – discussed Supreme Court cases Karlan described as completely changing the playing field for judicial elections.
In one 2002 decision, the court held that a canon in Minnesota that restricted judicial candidates from announcing views on disputed legal or political issues violated the First Amendment.
Karlan noted that Justice Sandra Day O’Connor has said she most regretted her vote with the majority on that 5-4 decision.
Friedland, who was clerking for O’Connor at the time, mused whether one option to combat the threat of big money flowing to judicial campaigns would be to impose strict disqualification rules.
Resnik favored judges serving 15-18-year flat terms. But Karlan raised the issue of judges positioning themselves for their next job by getting assignments where they’re settling complex cases so they can hop over to JAMS.
And on the question of whether facing reelection impacts how judges do their jobs, Friedland cited a study that found judges facing reelection imposed longer sentences.
Rivera eschewed that idea. She recalled making a “wildly unpopular” decision just before an election. “I didn’t think even for one second about whether this was going to affect my reelection,” she said. She asked for a show of hands on whether the roomful of judges would keep reelection in mind when writing an opinion. Hardly anyone raised a hand. But many arms went up on whether they could imagine other judges fudging decisions with an election in mind.
The panelists maintained elections can be important, though.
In the case of a hybrid system like California’s, where the governor appoints the majority of judges, Rivera said, a lot rides on the governor.
“If you have a governor, unlike our current governor, who pulls from a very narrow subset of lawyers – prosecutors, attorneys general, men, guess who gets shut out of the system for eight years,” Rivera said. “All the rest of us.”