Independence of the judiciary

Issue January 2003

Elected judges. Judicial campaigns. Campaign contributions. Buying access. Buying justice. Influence and corruption. Is this the future of our judicial system? Let’s hope not. Across the country, Massachusetts is only one of 11 states with appointed rather than elected judges. From time to time, we hear legislators, politicians and political pundits claim that the time has arrived for Massachusetts to elect its judges. This hue and cry is most often raised the morning after an unpopular judicial decision has been handed down, with the media helping to beat the drum for elected judges, just to make sure we can “throw the bums out” whenever an unpopular decision is made. How could we ever allow Massachusetts to sink into the tar pit of privately funded judicial campaign and elections, ostensibly to ensure that the electorate determines those who are most qualified to sit on the bench? Is it realistic to believe that the best-qualified judicial candidates will be elected, or will the usual political maxim — “he who slings the most mud wins” — prevail? Unfortunately, mud is often accompanied by substantial campaign contributions allowing candidates to sling mud at will. We see the effect of money on political campaigns every year in state and federal elections, and most of us recoil instinctively at the overbearing influence of private funds on election campaigns. Recently, President Bush nominated a Texas supreme court justice for the federal bench, only to have the nomination rejected by the Senate Judiciary Committee. Would it surprise you that the single biggest contributor to that judge’s election campaign was Enron? Would it surprise you that in every Enron case that came before that judge, the judge ruled in favor of Enron? Obvious corruption? Of course not. Influence? Probably, whether conscious or subconscious. On the subject of Texas, in a July 2001 ABA report of the Commission on Public Financing of Judicial Campaigns, a 1998 survey sponsored by the Texas Supreme Court was cited. It found that 83 percent of Texas adults, 69 percent of court personnel and 79 percent of Texas attorneys believed that campaign contributions influenced judicial decisions “very significantly” or “fairly significantly.” Perhaps the most shocking statistic was the fact that 48 percent of judges indicated that money had an impact on judicial decisions. Does this raise your eyebrows? If it doesn’t, it should. Surveys on the subject of money influencing judicial campaigns and, sadly, judicial decisions, show the same statistical results across the country. Imagine translating this experience to appearing before a judge who has to decide a case between you and his largest campaign contributor. How would you react on the morning of a major trial for your biggest client when the judge’s campaign manager calls to ask if you have made a contribution to the judge’s re-election campaign? Do you take the high road, and decline? Or do you make the contribution, knowing full well that your opponent has probably received the same call. It happens every day in other states. We cannot let this happen in Massachusetts. The public complains that campaign contributions of the wealthy and powerful (both individuals and corporations) control the agenda of politicians and, in fact, control the politicians themselves. Money ensures access. It also ensures a sympathetic ear for those who have financed election campaigns. The independence of our judiciary is and must remain sacrosanct. This separate and co-equal branch of government must remain free from the corrupting influence of campaign contributions. Each of us in the Massachusetts Bar Association and every lawyer in Massachusetts must be heard on this subject, loud and clear. An independent judiciary is essential to the Commonwealth of Massachusetts. Let your voice be heard.