In early July 2013, I wrote an article that was printed in the Arkansas Times. It was in response to the announcement by the Arkansas GOP that it was creating an independent PAC for the expressed purpose of electing judges that more properly reflect the views and values of Arkansas voters, i.e. judges should be elected to reflect conservative public policies rather than remain independent and impartial.
My article also referred to the coming of unfettered independent expenditures in judicial elections because of the 2010 U.S. Supreme Court opinion in Citizens United v. FEC. In addition, I stated my concern that the process of the election of judges is now deemed no different than the election of legislators or executives, such as governors. Thanks to a U.S Supreme Court opinion in 2002, Republican Party of Minnesota v. White, Justice Scalia concluded that electing judges is no different than any other election, and that the states gave up any argument to the contrary by not appointing its judges. Scalia’s mindset constitutes faulty thinking from my perspective. States have just as much interest in the independence of the judiciary as the feds do, regardless of how judges are picked to fill the position.
I want to reinforce a point: When it comes to the judiciary, appearances become reality in the minds of the citizenry the judiciary serves. As a judge for more than 14 years, I know that to be true, just as sure as the sun shines. The Code of Judicial Conduct, the rules by which judges are required to abide, makes appearances a critical element of the Code’s reason for being. If a judge appears to be biased or partial in his or her decision-making, then he or she is not impartial, and the public perception of the impartiality and independence of the judge is lost. It matters not that the judge is in fact independent of undue influence. That assertion is lost because of appearances. If a judge appears either corrupt or incompetent, then the collective public faith in the third branch of government begins to erode. If the election process for judges is tainted by the appearance of the corrupting influence of money, we have a major problem in keeping public faith in the most important process of checks and balances in our democracy. So, what now, since we now see a classic example of what was and is my major concern?
Permit me to preface this next point by citing some very flawed thinking by Justice Anthony Kennedy, who penned the majority opinion in Citizens United: “[T]he appearance of influence or access will not cause the electorate to lose faith in this democracy.” Really? You can argue that money for a legislative campaign, without a specific agreement to support a piece of legislation, is run-of-the-mill politics; and, therefore, you can argue that without an actual quid pro quo, buying access and influence over a legislator is not corrupting, as Chief Justice Roberts does in the most recent case of McCutcheon v. FEC.
Roberts incorrectly, and with amazing ignorance, concludes that appearances do not matter, that buying a legislator’s official conduct has to be criminal conduct before it rises to the point of giving government the right to limit the influence of money in campaigns. But appearances are of critical importance, even if not illegal, especially in judicial races. Appearances will cause the electorate to lose faith in our democracy. Conduct may or may not be criminal, but it can smell to high-heaven. In a judicial race, the impact from smelly money can be, and should be, devastating.
We have now witnessed “apparent” corruption first hand in Arkansas with the withdrawal of a circuit judge from a court of appeals race, and the filing of serious ethical complaints related to the judge’s actions, not to mention the possibility of criminal investigations into the relationship between contributions to the candidate that may have been directly related to the judge’s decision to favor the donor. I do not pass judgment on the factual question of whether an agreement to make substantial campaign contributions to a judge resulted in a judge’s substantial decision in the contributor’s favor, contrary to a jury verdict. That will, I hope, be sorted out.
Regardless of the facts, or the criminality, the impression left on me and countless others — the appearance, if you will — is glaring. I no longer have faith that the judge in question can be trusted to make a decision independent of the influence of money, or his quirky biases heretofore exhibited. It may make me or others question how many times this has happened before, and how many times it may not have come to light. At what point does this kind of example need to surface before we collectively lose faith in the independence of our judiciary? Why should the process of electing judges be subject to the same accepted norm of “access” money as in other elections? The simple and correct answer is that it shouldn’t.
Another thing: We now see judicial candidates flaunting their “conservative” values as a plank in their election campaign. No doubt those candidates believe that conservative pronouncements will garner them enough money and enough votes to win the election. Then what? Once elected, do we trust the judge to follow the constitution and established law, or are we to assume that a conservative public policy position will win the day, regardless? Have those judges, or panel of judges, wedged themselves into a corner when making a decision? Would you have faith in the judiciary when confronted with those appearances? Let’s not take sides here: The same problem would exist if judicial candidates ran on a platform of liberal or progressive or libertarian ideas as a basis for their future conduct once elected. It is flawed thinking and it is dangerous thinking.
I’ve said it once, and I say it again: We need to change the rules of the game. We will lose faith in our democracy if we lose faith in our judiciary.
David Stewart is retired executive director of the Arkansas Judicial Discipline and Disability Commission. He’s currently serving by appointment as district judge in Fayetteville.