Judges for sale

POLITICAL CAMPAIGNS are often vicious and expensive endeavors, featuring partisans who promise the heavens to win votes. The credibility of institutions sometimes suffers. The nation's state courts suffer more than most.

A report by a trio of public-interest groups documents how the most distasteful elements of campaigns have gained a foothold in judicial elections, especially in the 38 states that elect supreme court judges. Fundraising for these races more than doubled over the past decade. From 1990 through 1999, candidates in state high-court races raised $83 million. That number rose to $207 million between 2000 and 2009. Candidates in partisan elections raised the vast majority of money -- $154 million -- while those in nonpartisan races brought in $51 million; the remainder was raised by candidates in nonpartisan, non-contested retention elections. (State judges in Virginia are appointed. Only circuit judges in Maryland run in contested races; the rest are appointed and later face retention election.)

According to the report by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics, the spike in campaign cash led to a proliferation of television ads, and many of these took on the negative tones commonplace in races for legislative positions.

The consequences of forcing judges to act like politicians have been grave, leading many to doubt the ability of elected judges to remain impartial. A 2009 USA Today-Gallup poll, for example, found that 89 percent of those surveyed believed that campaign contributions were problematic and could influence a judge's rulings.

A variety of factors are responsible for the increased politicization of the judicial selections process. In 2002 the U.S. Supreme Court struck down on First Amendment grounds laws in some states that prohibited judicial candidates from stating their views on legal issues likely to come before them. Big-money special interests -- including business, trial lawyers, lobbyists and unions -- are playing an even bigger role in funding campaigns to ensure the election of judges to their liking. Judicial candidates curry favor with potential benefactors for fear of losing valuable campaign cash to opponents. The problem is likely to worsen in the aftermath of the U.S. Supreme Court's Citizens United decision, which put into question a variety of campaign finance restrictions.

Unlike lawmakers, judges must never have agendas or special loyalties to anything other than the rule of law. Some states have moved to insulate judges from inappropriate pressures by publicly financing judicial elections. Others have created tough recusal rules to ensure that judges will not decide cases in which large campaign contributors have an interest. These are good steps, but better still would be the elimination of judicial elections in favor of a merit system that is as transparent as possible. Allowing would-be judges to beg for cash and to make campaign promises about how they will decide cases tarnishes an institution that must be above reproach.