Politics And The Courts

I hate sports analogies, but sometimes, they just fit.

For those of you who are sports fans (I am not one of you), here’s a question: how much would you enjoy watching a game if you knew that the umpire or referee had been bribed, or even just recruited from a group of rabid fans of one of the teams on the field?

The decisions America’s founders incorporated in our constitution haven’t all stood the test of time–exhibit one, the Electoral College–but one that has was their determination that  the judiciary should be protected from political pressure to the extent possible.

There are sound reasons that federal judges are not elected–not “answerable” to the public in the same way that members of the legislative and executive branches are.

When we discussed judicial independence in my classes, I didn’t use the sports analogy; instead, I would pose a different hypothetical: let’s say you live in a small town where you are a party to a lawsuit. Trial is in the local court, where the judge has been elected. What if the lawyer representing the other guy was one of the biggest donors to that judge’s campaign, and is a regular at the judge’s Wednesday night poker get-together? If the judge ruled against you, how likely would you be to believe you’d been judged fairly and impartially?

Or let’s assume a judge is presiding over a high-profile case in which a majority of local folks are emotionally invested. Assume too that controlling law is on the side of the publicly disfavored position–and further assume that the judge is facing re-election. She’s a widow with a mortgage and a couple of kids in college, and she knows that following the law means losing the election.

You get the picture. Even if every judge in these hypotheticals is a paragon of virtue who ignores personal considerations and “calls them like s/he sees them,” public trust in the process would be hard to maintain.

Separation of powers was the division of our government into three branches. Two of those branches were intended to be answerable to public opinion, even public passion. The third was tasked with being an impartial arbiter, insulated from electoral pressure. When judges are wrong–and there are plenty of times they will be–we want them to be wrong because they misread the law, not because they were in thrall to donors or interest groups.

That’s why the constitution requires an appointed judiciary in the federal courts, a decision that has slowed–but certainly not stopped–efforts to politicize America’s court system.

It is admittedly impossible to keep politics completely out of the judicial selection process–especially selections for the Supreme Court. But the problem is far worse in the large number of states that continue to elect their judges. A recent report from Governing Magazine shows just how far state-level politicians (mostly, but not exclusively, Republicans) will go to game the court system.

Last Monday, Republicans in the Louisiana House tried to pass a proposed constitutional amendment to redraw election districts for the state Supreme Court, while adding two seats to it. The effort came up short, but it was just the latest move by a state legislature to try to change how high court justices are elected. Just three days earlier, Illinois Gov. J.B. Pritzker, a Democrat, signed a bill that redraws election districts for his state’s Supreme Court, a move observers believe is aimed at maintaining his party’s 4-3 majority in next year’s elections. And Republicans in Montana and Pennsylvania passed bills in the past year to create districts for their high courts, both of which currently have progressive majorities and whose members are now elected statewide.

The article focused on what it termed “judicial gerrymandering,” and like all gerrymandering, the goal is unearned power. In states across the country, politicians are redrawing their state’s high court election districts in ways that favor their party’s candidates.

Admittedly, there is no way to entirely insulate courts from political pressures. Here in Indiana, where a judicial nominating committee considers candidates for the State Supreme Court and sends three names to the Governor, it’s a given that the ultimate choice will be someone from the Governor’s political party. For that matter, the committee members will be impressed (or repelled) by the identities and politics of the people “lobbying” for particular candidates.

Nevertheless, Indiana’s process significantly attenuates the role played by partisanship. It recognizes that when the umpire is effectively a member of one of the teams on the field, the teams and their fans are all losers.