In the last decade, the cost of running for judicial office in America has exploded, doubling to over $200-million nationwide. With each election cycle, running for judicial office has only grown costlier, as ever-larger amounts of money are raised, and then spent, to elect state judges. As the cost of running for judicial office has grown, so too have charges of vote-buying and undue influence.
Most infamous in this regard was the 2002 Supreme Court election in West Virginia, where the CEO of Massey Energy, a coal company facing a fifty-million–dollar verdict for illegal and fraudulent business practices, spent three-million dollars in support of a successful judicial campaign by Brent Benjamin for a seat on that court. In turn, Benjamin proved to be the deciding vote in overturning the fifty-million–dollar jury award in 2007. When the case was appealed to the U.S. Supreme Court, a five-to-four majority of the Justices overturned the West Virginia Supreme Court’s decision and returned the case to the lower court for further proceedings; in so doing, the Justices addressed the dangers that funding support for judicial candidates could pose. “There is a serious risk of actual bias,” noted Justice Anthony Kennedy for the majority, “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds . . . when the case was pending or imminent.” Where this was the case, the majority ruled, elected judges were supposed to recuse themselves from the proceedings. 1
Yet despite the Supreme Court’s words of warning, the West Virginia example is but one among many cases in which those with personal or ideological interests before the courts have given significant financial support to judicial candidates—and those candidates later ruled in favor of their financial backers. Such examples have become so numerous, in fact, that many ask if justice is for sale in America—or, as Andrew Rosenthal of the New York Timesput it: does America have “The Best Courts Money Can Buy”? 2 For too many [End Page 356]Americans, the answer to this question is a resounding “yes.” As former U.S. Supreme Court Justice Sandra Day O’Connor noted in 2010, the unchecked role of money in judicial elections has produced a “crisis of confidence in the impartiality of the judiciary,” undermining faith in “the rule of law that the courts are supposed to uphold.” Her solution, one advocated by many others, is to take the partisanship out of judicial elections, either by adopting judicial appointment with retention elections as the means of choosing judges or by publicly funding judicial races. 3
Justice O’Connor’s contention that unchecked partisan elections of judges threaten judicial independence and impartiality has an ironic historical twist. As Jed Handelsman Shugerman of Harvard Law School notes in The People’s Courts: Pursuing Judicial Independence in America, the adoption of partisan judicial elections in the mid-nineteenth century was justified at the time as defendingjudicial independence from the corrosive influence of special-interest politics. Put another way, what we now see as a threatto judicial independence (and hence to public trust in the judicial system) appeared in the mid-nineteenth century to be a solutionto that same problem.
This ironic change in perspective over time lies at the core of Shugerman’s sophisticated and nuanced book. Focusing on what he describes as the “five stages” of judicial selection in American history—“the premodern unseparated judiciary, judicial aristocracy, judicial democracy, judicial meritocracy, and judicial plutocracy” (p. 9)—Shugerman contends that, no matter which method of judicial selection is adopted at a particular time or place, the constant theme of how we pick judges in America is the idea “that judges are fundamentally unlike other political officers, and they should be separated from politics in order to act as judges” (p. 269). In fact...