When judicial campaigns go bad
© St. Petersburg Times, published September 10, 2000
When you hear of politicians engaging in negative campaigning and raising gobs of money, judges don't typically spring to mind. They, after all, are supposed to be above the political fray.
But more and more across the country, judicial races are taking on the appearance of bruising political battles, fought with hundreds of thousands of dollars in campaign funds contributed by special interests. All this money and ugly political rhetoric threaten the independence and dignity of the profession.
The problem has become so severe that the chief justices of the 15 most populous states are planning to come together in December to address the issue. They will be looking at possible solutions short of proposing to revamp the electoral systems in the 42 states that elect judges at some level. Some of the ideas on the table are: having an independent body provide neutral voter information on judicial candidates rather than having the electorate rely on campaign ads and lengthening judicial terms so elections would be less frequent.
But the problem of rough-and-tumble judicial campaigns isn't going to be fixed at the margins. To win an election, candidates know they need to raise money and make their opponents look less appealing. These prescriptives for successful electioneering apply whether the race is for president or local judge. As much as the judicial profession likes to think of itself as immune to such considerations, it was inevitable that the cost and heat of judicial campaigns would be ratcheted up, just as they have been for other elective offices.
The only way to reverse the trend is to take judges out of the race. States should reconsider electing judges and moving to an appointment system.
Judges are not policymakers. Their job is to apply the law fairly and impartially, and the appearance they are doing so is key to the trust citizens have in the integrity of the system. It does our justice system no service to have judicial candidates out on the campaign trail talking about their "lock 'em up" views, boasting about how they would have ruled in a given matter and raising money from attorneys who may later appear before them, as happens in some states. Alternatively, limiting what judicial candidates may say and directing how they raise and spend money may infringe on their First Amendment rights, as well as constrict what the voters know about the candidates.
The better approach is to eliminate the need for the campaign entirely.
While we currently elect trial court judges in Florida, voters in each county and each judicial circuit will have the opportunity this fall to adopt a merit retention system, in which judges are appointed and then retained by a vote of the electorate. This system is not perfect, but it would answer many of the criticisms of the electoral process while providing voters with a way to get rid of judges who don't live up to expectations.
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