Law professors Erwin Chemerinsky and James J. Sample write in an opinion piece in today’s New York Times,
In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”
First of all, is it right that judges should ideally decide cases based on the law? One of the points Segal and Spaeth make is that, were the law sufficiently clear, there would be no need for judges to weigh in. Thus, it doesn’t make sense to expect judges to make decisions based purely on the merits. And yet, for some reason we do do. I think Robert Dahl also made this point in his classic 1957 article.
The authors then proceed to their main point, which is that political donations to judges and judicial candidates have an undue influence on their decisions. Their evidence? Exhibit A is public opinion.
More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.
Are there any instances of actual court-buying that these scholars can cite? Just one, involving Massey Coal Company.
So to summarize the case: court-buying is bad. Most Americans think donations buy court decisions. There is lots of money being given to judicial candidates. And the Supreme Court ruled that in one instance, it looks like there was a conflict of interest involving contributions and judicial decision making. Therefore, we should impose further restrictions on giving to judicial candidates.
Right? But to summarize the actual evidence, we have a single instance of what could be construed as court-buying. Is that sufficient to make a change in policy? Unfortunately, once you sprinkle in some selective statistics and public opinion polling (even after, nonetheless, they deride the public’s ability to make decisions in judicial elections earlier in the piece), it just might be.