Stop Electing Judges

Take down the signs. The party's over.

Photographer: Bruce Gifford via Getty Images

 Almost all candidates for public office have one thing in common: They have to be very good at asking people for money. Except if they happen to be running for judge in Florida, where judicial candidates are prohibited from personally soliciting contributions. They can, however, have surrogates ask -- and they are allowed to send personal thank-you notes to those who donate.

Saying please, then, is forbidden, while saying thank you is not. Justice may be blind, but it can still wink.

This charade may well be constitutional, which is the question that was debated at the Supreme Court yesterday. But it is also absurd. Unlike legislators and executives, who are elected to advocate for a cause or constituency, judges are supposed to answer only to the law. Judicial elections endanger the impartiality of the courts and undermine public confidence in the justice system.

Yesterday's case was brought by Lanell Williams-Yulee, a Florida judicial candidate who was reprimanded and fined by the state bar for sending out a mass mailing asking for money. Williams-Yulee argues that her First Amendment rights were trampled, and judicial candidates around the country are watching her case closely: Most of the 37 other states with judicial elections have adopted similar prohibitions on campaign solicitations.

The Supreme Court has taken a dim view of campaign finance restrictions that limit political activity. Five years ago today, the Supreme Court struck down a law prohibiting corporations from spending money intended to influence the outcome of an election. In that case, the court’s more liberal justices argued for a narrow decision, but the conservative majority invalidated the whole statute. The same tension was evident yesterday.

Judicial elections don’t just invite conflicts of interest; they're pretty much the definition of them. Who wants to be party to a case where the opposing lawyer has donated to the judge? It's better to know the judge than to know the law, as the saying goes -- and as one study has indicated, what's best is to be one of the judge's fundraisers.

As long as states elect rather than appoint judges, campaign contributions -- no matter who does the asking -- will allow interested parties to curry influence. Of course, moving to an appointed system of judges does not eliminate the potential for corruption. Governors can pick judges the same way that presidents pick ambassadors, with friends and fundraisers jumping ahead of more qualified candidates. But legislators can mitigate that threat by subjecting a governor’s appointments to their approval.

Legislators can also set judicial terms that are fixed and staggered, limiting any particular governor’s ability to stack the court. And they can impose mandatory retirement ages, which increases turnover. Mandatory retirement ages and fixed terms would give the public’s elected representatives more opportunities to influence the bench.

It's never wise to predict what the Supreme Court will do. But in this case it has two broad options: Strike down Florida's ban on judicial solicitations as a violation of a candidate's First Amendment rights, or uphold it as central to the integrity of the judicial system. Neither choice is ideal. But if the case serves only to expose the folly of judicial elections, the Supreme Court will have done the country a great service.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.