Independence of the Judiciary
By Bill Conger

Never before has the issue of judicial independence become so important. The assault on the judiciary is profound and threatens to seriously erode the independence of our courts, which is vital to a fair and impartial system of justice and the rule of law. Moreover, it will undermine public confidence in our state courts. The assault comes from all corners, and it is not just extreme fanatical groups but mainstream large corporations, large associations representing self-interest groups such as unions, the medical profession and yes, even the legal profession, the national and local chambers of commerce — and even the executive and legislative branches of government.

The amount of money spent on judicial campaigns is staggering. Since 1999, Supreme Court candidates have raised more than $157 million compared to $61 million from 1991-98. Television ads have increased dramatically. In 2000, TV ads ran in fewer than one in four states. In 2006, it was 10 of 11 states, and most are full of misinformation. As Bert Brandenburg, executive director of the Justice at Stake campaign points out, these ads that present a dark fantasy world populated by abused children, fearsome rapists, malevolent corporations, greedy lawyers and unscrupulous judges, are often the only information people get about judicial races.

Perhaps the most troubling development is the growth in “check the box” questionnaires where judicial candidates are requested to check in a box a one-word or short-phrase position on complex and controversial issues such as abortion, same-sex marriage, death penalty or some other highly charged local issue. The pressure on the judicial candidate, challenger or incumbent, is enormous and pressure the candidate to essentially promise a certain outcome to a special interest group — and don’t think judicial candidates don’t feel the pressure. As former Justice Sandra Day O’Connor said, “In too many states, judicial elections are becoming political prize fights where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”

The battle for judicial seats is now being waged with the typical weapons of politics: money, influence and salacious advertising. Examples of the vigor in which these weapons are being used abound, but perhaps the most egregious occurred in 1996. Justice Penny White was an associate justice in the Tennessee Supreme Court. She was only the second woman to serve on the court in the history of the state. She had previously been a trial and appeals court judge where she served with distinction.

In 1996, the case of a man who stabbed to death and raped a 78-year-old woman came before the Supreme Court. Justice White was one of five judges who ruled that procedural errors in a lower court required a new sentencing hearing. She did not write in the majority or concurring opinion.

In her retention election later that year, Justice White was voted out of office. This was accomplished primarily through the efforts of the Tennessee Conservative Union. The special interest group flooded the state with literature and advertisements that claimed the defendant in the murder/rape case “won’t be getting the punishment he deserves — thanks to Penny White. She felt the crime wasn’t heinous enough for the death penalty, so she struck it down.”

Although the advertisements were completely false, Justice White, bound by the judicial code of conduct, refused to address the ads.

Justice White’s previous conduct, contrary to the claims of the Tennessee Conservative Union, seems to indicate she was anything but soft on crime. In her time on the appellate court, she upheld 85 percent of the convictions of criminals seeking reversals, and in 90 percent of cases where criminals sought probation instead of prison time, she ordered imprisonment.

It is all about money. A new Democratic Judicial Campaign Committee is promising to raise millions to unseat judges and justices across the country. “Changing control of our country comes down to one factor — money,” says its Web site. In 2004, Illinois judicial candidates in one race raised $9.3 million, more than 18 out of 34 U.S. Senate races. “That’s obscene,” said the winner on election night. “How can people have faith in the system?” Apparently they don’t. Seventy-six percent of Americans believe campaign contributions have at least some influence in judges’ decisions, 79 percent of business leaders agree and 26 percent of state judges agree.

IS JUDICIAL INDEPENDENCE IN OKLAHOMA AT RISK?

As in every state that holds judicial elections, the judicial independence of Oklahoma’s judges is at stake. This is especially true of Oklahoma’s District Court judges. Oklahoma’s 73 District Court judges face non-partisan elections every four years. The combination of relatively short terms along with the non-partisan elections makes our district court judges particularly susceptible to attacks on their judicial independence.

One specific group that is based in Oklahoma and is actively advocating for pro-business state judges is The Oklahoma Project.

The Oklahoma Project has pushed forward several initiatives including “Citizens for Judicial Review” and the “Economic Judicial Report.” Both initiatives were designed to advocate for judges the group has identified as pro-business. One of the projects set in motion by The Oklahoma Project was a plan to evaluate each state’s judges voting records in an effort to identify and provide support for pro-business judges. The stated goals of this project were to “have a significant impact in judiciary behavior and create positive cost results in our state, region and nation.”

The report published by The Oklahoma Project led directly to lobbying by local special interests groups to vote two particular judges off the bench who were identified as anti-business.

The Oklahoma Project has also conducted surveys of local members of the bar in Oklahoma and five other states including Florida. These surveys asked the bar members to assess the performance of local judges. In Florida, it was not initially revealed that the survey was being conducted by a pro-business advocacy group. When this fact was revealed, it generated great controversy. In Alabama, The Oklahoma Project’s efforts to conduct a survey of bar members was criticized by the state bar association and was eventually abandoned.

This is merely one initiative that is based right in our backyard. The judiciary is fast becoming a battleground for business and special interest groups that may believe it is easier and cheaper to achieve political goals from the bench than it is through the political process. It would appear that our district court judges are most at risk to having their judicial independence attacked, although none of our state judges are exempt.

POSSIBLE SOLUTIONS AND CONCLUSION

One of the problems with judicial elections is that the public knows so little about the candidates, and the judges themselves are bound by judicial ethics rules that keep them from publicly establishing positions. As a result, judicial elections are even more susceptible to being influenced by whichever business or special interest group makes the most effort and spends the most cash to disseminate information about the candidates. If judicial elections are going to be the method of selecting judges, something needs to be done to fill this vacuum of information.

One suggestion is that a neutral commission be set up to provide judicial evaluations that could be disseminated to the public. One local attorney suggests that judges should be rated on work ethic, neutrality and competency by this neutral commission. The issue with this solution that first comes to mind is, “Where can we find a neutral commission?”

Another issue that needs to be addressed is judicial campaign contributions. Some states are moving to fund judicial campaigns through public funds rather than private fundraising. This eliminates the pressure judges feel to rule for those who gave to their campaign, and it also eliminates the pressure on attorneys to donate funds to the campaigns of judges they could possibly appear before. Another option is to allow donations to a judicial campaign fund that is equally divided among the judicial candidates.

I don’t know whether any of these solutions are workable. Justice O’Connor thinks we should do away with judicial elections. My perception is that will not happen. I do know this, we, as officers of court, must educate our fellow citizens about the importance of an independent judiciary and, when they cannot speak out, as in the case of Justice White in Tennessee, we need to step forward on their behalf.

Sincerely,

To contact President Conger, e-mail him at bconger@okcu.edu