Judicial Independence and Accountability: State Courts
This is a subject to which I came in the 1990s. I was of course long aware of the deficiencies of popular election as a means of selecting judges. I had participated in a judicial election campaign in Texas in the summer of 1954. But the alternatives to popular elections did not seem so swell, and states with diverse systems seemd to be getting along.
I do not know whether democracy can survive television, but surely judicial elections were about the first to be substantially stripped of any merit that had possessed. One consequence was to make it possible to buy elections with advertising, a thing that had been previously difficult to do. The cost of judicial campaigns began rising. And misguided Supreme Court decisions equating money with speech made it extremely difficult to conduct such campaigns honorably.
I began to write and speak about the problems. I organized a conference on the subject for the American Bar Association that was held in Philadelphia in 1998. I prepared a volume of readings for the conferees and edited a volume of the papers presented. Whenever I got a chance, I spoke to the problem. I served the Century Fund as Co-Reporter on their project. None of this seemed to have much effect.
In 2000, I aligned with Democracy North Carolina to advance the idea of public finance of political campaigns, an idea that prevails in Europe, Maine, and Arizona. When we could not sell the idea in North Carolina, I hit on the scheme of public finance of judicial campaigns as a means of protecting our judges from the worst features of contemporary judicial politics. I organized a group of bar leaders and former judges to support the notion, and lo and behold, the North Carolina legislature adopted it. Voters’ Guide Proposal. It is worrisome that it lacks adequate funding. And of course it is an imperfect system at best. But then a state chief justice has assured me that no method of selecting judges is worth a damn. And it was my hope of making the scheme work that caused me to decide to seek a seat in the North Carolina Senate. My Campaign in 2004.
My somewhat idiosyncratic views were expressed in a bar journal piece. Selecting North Carolina Judges in the 21st Century. I serve on a North Carolina Bar Association committee that will be advancing an amendment to the state constitution in the not-too-distant future. And I also serve on the legislative committee of the North Carolina Academy of Trial Lawyers. It is my hope that the two can get together on a scheme that can be sold to the General Assembly and to the voters. We’ll see. Meanwhile, other states need new solutions, too. Meanwhile, a suit has been brought in federal court attacking our scheme for public finance, and a politically liberal organization has improvidently expended a lot of money on the 2006 judicial campaigns, making it very likely that the US Chamber of Commerce will respond in 2008. I have an unpublished paper recording the present state of affairs.
An echo of my earlier work on the history of legal education led to the publication of a chapter in a book on the history of the Supreme Court of Michigan.
My other publications on this topic are:
Judicial Independence and Democratic Accountability, 61-3 Law & Contemp. Prob 79 (1998)
Big Money in Texas Judicial Elections: The Sickness and Its Remedies, 53 SMU L. Rev. 263 (2000)
Selecting Pennsylvania Judges in the 21st Century, 106 Dickinson L. Rev. 747 (with Adam Long)
The Independence and Accountability of the Ohio Supreme Court: Recalling the Work of Frederick Grimké, 30 Capital Univ. L. Rev. 455 (2002) (with Adam Long)
A Barnburning Court: The Chief Justiceship of Thomas Cooley, in Michigan Legal History (Paul Finckelman & Mark J. Hershock eds. 2006)