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Posted October 12, 2018, 12:00 pm CDT
Special interest money is pouring into state supreme court races, creating “a morass of conflicts of interest that threaten the appearance, and reality, of fair decision-making,” according to a report released Thursday by the Brennan Center for Justice.
Twenty-two states have contested supreme court elections and 19 states have retention elections for sitting justices. Twenty states have had at least one justice on their supreme court who was involved in a $1 million election, the Brennan Center said in an executive summary, citing January 2017 data. Twenty-seven justices were elected in million-dollar races during the 2015-16 election cycle, compared to the previous high of 19.
“Left unchecked, these trends can undermine the integrity of state supreme courts and the public trust that undergirds their legitimacy,” the report says.
The Brennan Center’s solution: States should completely do away with state supreme court elections. Justices should instead be appointed through a publicly accountable merit-selection process in which an independent, bipartisan nominating commission vets candidates and takes a public vote on its shortlist. The commission should have “diverse appointing authorities and membership, including nonlawyers.” The governor would then select an appointee from the list.
The appointment should be for a “one and done lengthy single term” that eliminates re-selection pressures, according to the report.
The one-and-done terms should be staggered, and states should consider altering their pension systems so justices’ pensions vest at the end of their terms, the report says. States also might want to adopt a senior judge system where former justices could preside over lower-court cases.
In the alternative, the report says, states could allow supreme court justices to serve indefinitely, with or without a mandatory retirement age, subject to the same “good behavior” rules as federal judges. The states of Massachusetts, Rhode Island and New Hampshire follow this model. Two other jurisdictions, Hawaii and Washington, D.C., have independent commissions that decide whether justices should be retained.
Before making a switchover, there are interim steps states can take to reduce the damage from politicized elections, the report says. They include adopting a well-funded public financing system for judicial elections, and strengthening recusal rules.
Litigants should have to file a disclosure affidavit listing campaign contributions by the parties or their attorneys for or against a judge, including contributions to third-party entities, according to recommendations. Recusal motions should be decided by an independent judge in a public, written decision.
Currently, only a minority of states have laws or rules that address when judicial campaign spending warrants recusal, and most of the rules address direct contributions, according to the Brennan Center. Only six states have rules clarifying when independent expenditures require recusal.
The report is the culmination of a three-year project examining judicial selection for state supreme courts. The Brennan Center studied how states select justices, spoke with experts, reviewed articles and considered other reform proposals.
The Brennan Center describes itself as a nonpartisan law and policy institute that focuses on voting rights, campaign finance reform, ending mass incarceration, and preserving liberties while also maintaining national security.
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