If Judicial Independence is one of the hallmarks of a democratic republic, why are more and more elected judges in this country selling out to the corporate ruling elite? by Bill Gee
(centrist)
Thursday, May 19, 2011
In her memoir, The Majesty of the Law: Reflections of a Supreme Court Justice, Sandra Day O'Connor spends an entire chapter on the importance of Judicial Independence. Despite being appointed by Ronald Reagan, Justice O'Connor built a reputation on the bench as a moderate who firmly believed that the Supreme Court operated in a sphere outside the influence of politics and public opinion, and that in order for our democracy to survive both here and throughout the world, an Independent Judiciary is of paramount importance. At the close of the chapter she offers a cautionary note on preponderance of elected judges in this country is a threat to that independence.
Alas, it appears that Judicial Independence is rapidly succumbing to the pressures of the opaque, corporate ruling elite as elections for judges in this country become more and more expensive, and candidates find it necessary to sell their judicial independence to corporate special interests.
Case in point: The April 5, 2011 state Supreme Court election in Wisconsin, which pitted incumbent David T. Posser Jr. (former Speaker of the House and a supporter of that state's controversial Governor) against challenger JoAnne Klopenburg ran up a price tag of over $4.4 million, mostly from unidentified contributors. At stake was the judiciary's ruling on the constitutionality of the Governor's plan to restrict collective bargaining rights for public employees. In other words, the election of a supposedly "Independent" Justice had everything to do with swaying the Court to rule one way or another with money raised by those who would stand the most to benefit from an outcome in their favor.
Elections Trump Independence
Currently, 39 states elect their judges, and since the Citizens United case, the door has been opened for America's wealthy corporate elite to stack the judicial deck in their favor.
Independent and professional judges are the foundation of a fair, impartial, and constitutionally guaranteed system of courts of law known as the judiciary. This independence does not imply judges can make decisions based on personal preferences but rather that they are free to make lawful decisions even if those decisions contradict the government or powerful parties involved in a case. (Source: Principles of Democracy, a US State Department Publication)
How "fair" or "impartial" can a judge be when a Montgomery, Alabama law firm gives $606,000 to a Supreme Court candidate in 2008? How "independent" can he or she be when in Michigan, over $6 million in campaign contributions come from anonymous donors? How "professional" can a Justice be when over a quarter of their time on the bench is spent attending fund raisers and making promises to significant donors? (Source: Bloomberg Businessweek, May 16-22, 2011)
What about self-funded Candidates?
In rare cases, candidates for the State Supreme Court can fund their own campaigns, and therefore shield themselves from special interest groups and corporate donors. Unfortunately, when one runs the numbers, such a move is likely to bankrupt even the most well-intentioned candidate. According to the Office of Oregon State Administrator National Justice Salary Comparison table, State Supreme Court Justices earn only a modest salary that ranges from $218,237 (California) to $112,530 (Mississippi). With the average Judicial campaign (every six years on average) running into the millions of dollars, why would anyone want the job unless they can find people who are willing to donate the necessary funds in order to make it happen?
I'm Independent Until the Next Election, Right?
A judge may claim to be independent after their election, but how independent can they be? When legislators fail to fall in line after their election, they suddenly find themselves outspent by their challengers in the next election. Some legislators don't even get that far as several members of the Wisconsin legislature now find themselves in the middle of recall elections. If a judge or a legislator wants to keep their job, their safest plan is to meet with their biggest donors and do exactly what they tell them to do. In exchange for their souls, some are promised powerful corporate or lobbying jobs after their tenure or a promise that they will be able to keep their jobs for as long as they want. It is just how the system works.
An independent judiciary assures people that court decisions will be based on the nation's laws and constitution, not on shifting political power or the pressures of a temporary majority. Endowed with this independence, the judicial system in a democracy serves as a safeguard of the people's rights and freedoms. (Source: Principles of Democracy)
It blows your mind how far away from that we have come.
What Can We Do?
The simple answer is to end the practice of electing judges, using the Constitution as the model. State Justices should be appointed by the Governor, confirmed by the state Senate and appointed for life. While the appointment process is often a "dog and pony show" of partisan politics, more often than not, you are most likely to appoint a right-leaning or left-leaning Moderate to the bench. That person would then be able to judge each case independently, on the merits of the case verses the Constitution and not worry whether their judgment will hurt their chances of keeping their job in the next election cycle.
The notion that electing judges gives the "power to the people" is a myth that is oft-repeated by the corporate ruling elite. Elections are expensive and only way for an elected official to get elected in anything more than a school board, they need to sell a portion of their judgment, independence and professionalism to those who fund their campaigns, not the people to whom they swear to serve.
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Bill, I've often thought that Constitutionality should be the essence of all laws first and foremost. Laws as presented to the legislature should pass constitutional muster first, not after they damage our republic and become systemic. Having and enlightened discussion first in the full knowledge of the people and the opportunities therein for the people to punish or reward legislators for their efforts. We see a form of this when courts are asked to rule on proposed constitutional amendments on state ballots. A board made up of non attorney-lay persons may be in order. Who? Well that could be problem. State appointee's? Affirmed during each Congression election? Maybe.
BT
Posted By: Bill Gee
Date: May 23, 2011 09:27:33 AM
Interesting thought. The difficulty with getting legislation to pass Constitutional muster prior to passage is that the "rules" that are generated by the executive branch in order to enforce the new law is where the problems usually occur. A panel of concerned citizens, no matter how well-informed, cannot predict every rule the executive branch will need and be able to evaluate them against the general principles of the Constitution without the help of lawyers, industry experts, law enforcement, etc. In other words, your "board" would very quickly fall under the influence of the very people the laws were meant to regulate!
Case in point: The Sarbanes-Oxley Act of 2002 was designed primarily to prevent another company like Enron from fooling investors by manipulating their financial statements. The primary enforcement agency for the SOX Act is the Financial Accounting Standards Board (FASB) and the Public Company Accounting Oversight Board (PCAOB). Since 2002, these two agencies have passed many new regulations in order to fullfill the overall intent of the SOX Act starting with new Auditing and Accountability Rules and continuing with new reporting and fair-value accounting rules. Nobody outside of the Accounting profession can even begin to understand the complexity of the Accounting world and how these changes will be either help or make the problem worse. I have a Master's Degree in Accounting and I've been working with the new FASB rules for six years now, and I barely understand them myself! The point is, nobody could have anticipated the full extent of new accounting rules that would be generated from that single Act of Congress in 2002, let alone be able to understand the collateral Constitutional issues.
Some of the rules of the SOX law are being challenged by companies. Some argue that the new rules are not necessary, some argue that the law oversteps the Central Government's authority to regulate the reporting of commerce. The venue for such challenges is in the Courts where an independent Judge can evaluate the challenge against Constitution and make a ruling accordingly.
The problem - to bring this back to my original article - is that if the Judge him/herself has already sold out to corporate interests in order to fund their election to the bench, then there is a significant risk that they will ignore the Constitutional issues and simply rule in favor of whoever happens to be paying the bills.
