After the passing of Supreme Court Justice Antonin Scalia, a great amount of controversy was generated by Republicans and Democrats, each seeking to appoint a justice who would readily make decisions attuned to the specific party. Hoping to position an agreeable judge prior to the presidential inauguration, President Barack Obama nominated federal circuit court judge Merrick Garland. With fierce opposition from Senate Republicans such as Sen. Grassley (R-IA), who sits on the Senate judiciary committee responsible for overseeing federal judicial appointments, Scalia’s seat remained vacant for the rest of Obama’s term. A lengthy battle ensued well into newly-elected President Donald Trump’s first weeks of office, when he nominated Judge Neil Gorsuch to fill Scalia’s seat, a man following the strict constitutionalist ideology that Scalia subscribed to. With immense opposition facing Trump’s nominee, Senate Republicans amended rules to prevent a filibuster attempt by the Democrats and Gorsuch was confirmed. Such politically charged drama for a seat on the Federal Supreme Court is unprecedented. The process unfairly politicizes judging, a function of government which rests on notions of fairness and impartiality. Interjecting political ideology into judging should be limited or else the integrity and impartiality of the judiciary may be compromised by political agendas rather than a firm grounding in law, jurisprudence, and the Constitution.
The federal court system is the only court system in the United States that engages in such drawn out appointment processes. Moreover, it is the only system in the US where judges serve for life. In stark contrast, state judges are selected with a vastly different approach. For example, in Pennsylvania judges are selected in competitive partisan elections, with each selected judge serving for ten years, with the opportunity to submit themselves for a retention election in which they run unopposed without party affiliation. Voters cast a “yes” or “no” vote to decide whether a judge remains on the bench for another term, with required retirement at 75 years of age.
Both selection models politicize judging, thereby diminishing the independence of the judiciary and its ability to remain impartial. Although some states opt for nonpartisan elections or nontraditional selection methods, most use partisan elections. Some political scientists and legal scholars, such as Chris Bonneau and Melinda Gann Hall, posit that partisan judicial elections have a positive effect citing higher degrees of turnout and increased awareness of judicial issues amongst the electorate. Engaging in judicial elections in a post Citizens United era raises the specter of campaign finance against the image of a fair and impartial judiciary. Large sums of money are now nearly always necessary to win a seat on the bench as is evidenced by the current Chief Justice of the Pennsylvania Supreme Court spending over one million dollars to secure a seat in 1997. In 2015, post Citizens United, current Justice Kevin M Dougherty, amassed 5.6 million dollars of campaign contributions to win his election. The two runners up, who also won seats, were David Wecht and Christine Donohue, raising 3.6 million and 2.1 million respectively. In a high stakes election to determine the future of the state’s highest court, such wild spending might be expected; however, the increased spending levels follow both state and national election trends.
Judicial campaign finance raises the issue of large donations undermining the fairness, impartiality, and independence of a judiciary. In 2009, the US Supreme Court addressed a nightmare scenario of this fear in Caperton v. A.T. Massey Coal Co. This case dealt with a West Virginia Supreme Court justice who refused to recuse himself from a case concerning one of his campaign contributors. Apart from Caperton, a 2006 New York Times study of the Ohio Supreme court made claims that justices voted in favor of their contributors 70 percent of the time on average. Surprisingly, on the Pennsylvania Supreme Court, these trends do not seem to follow. Upon evaluating their voting records, it was found that justices were not shy of recusing themselves. Notwithstanding the donations from law firms, a source of judicial campaign cash seen as a blatant conflict of interest, the Chief Justice ruled in favor of his donors only 52 percent of the time while the Ranking member of the court, Justice Debra McCloskey Todd, ruled in favor of her donors just 44 percent of the time. Analyzing cases from top donors it was found the justices either did not participate in the decision of such cases or no lawsuits had come before the court with a direct link to the donors’ interests. The difference between these two sets of data, apart from methodology, is time. In the wake of Caperton, Citizens United, and the string of scandals on the Pennsylvania high court, justices might be more self-aware of the potentially harmful effect the appearance of political loyalty could have on perceived notions of fairness and impartiality.
While many large donors are law firms or individuals, a significant amount of donations come from more nebulous sources such as interest groups or party committees. While donations from law firms or individuals may present a clear conflict of interest it is less clear how interest groups or parties factor in since they are not always a named party in a case. If the Pennsylvania Republican or Democratic parties donated to a candidate it would be too prohibitive to demand recusal if a politically charged case came before the court. Justices already have well developed legal opinions on issues from a long career in legal practice and recusal cannot become common enough that donations are given strategically to prevent a judge from hearing a case. Additionally, some candidates running for seats on the Pennsylvania Supreme Court contribute significant sums of their own money to fund their campaigns. Therefore, the causality of decisions may not rest on Justices favoring donors. Rather, causality might rest more properly on the Justice’s base ideology influencing who donates to them in the first place. This is to say, the ideology of a candidate for justice determines the amount of donations and from whom they originate and that a Justice would have made the same decision in a given case irrespective of donations.
Traditionally, winning a retention election as a judge in Pennsylvania is relatively easy. Moving into an era of highly politicized elections with large donations the ease with which a judge can win a retention election may diminish as public knowledge is bolstered by attack ads and other sources of media. Currently, only one sitting member of the Pennsylvania Supreme Court has engaged in a retention election, Chief Justice Thomas Saylor. Saylor spent just over 1 million dollars to win his seat on the court in 1997. In 2007, despite the trend for increased spending in all American elections, Saylor spent $627,564. There is some room for interpretation as to what this could mean. On the one hand, the smaller amount of donations might mean that if the Chief Justice is influenced by donations in any manner whatsoever, he will feel far less obligated to consider the preferences of donors during his second term. In Contrast, when he ran for office in 1997 the top 10 largest donors to his campaign constituted just over 21 percent of his total contribution. In his 2007 retention election the top 10 donors to his campaign constituted 48 percent. Furthermore, it could be argued that the Chief Justice relied more heavily on his biggest donors to win retention than he did in 1997 therefore making him more beholden to them not less. This logic assumes that donations have a measurable effect on judging. While this effect has been observed in some jurisdictions it has not been immediately observable in Pennsylvania. Although the possibility may exist for campaign cash to have a corrupting effect on the judiciary, on the Pennsylvania Supreme Court this effect seems to have been minimal at best.
The federal model of judicial appointments and the election and retention methods used by Pennsylvania both serve to politicize the process of judging in their own ways. Since the politicization of judging is becoming unavoidable with the political battles waged for US Supreme Court seats, commentary in the media, and state judicial elections raking in large amounts of donations, the citizenry must decide how it wishes to select those who inevitably pass judgement on their behalf. It is somewhat given that federal judges serving life tenure are perhaps the most independent from outside influences. However, it comes at the expense of the electorate who have no direct say in their appointment process. The best the US electorate can do to select individuals such as Justice Gorsuch is by carefully voting for their senators. Judicial elections give the electorate an opportunity to directly choose their justices rather than indirectly. Whether this benefit outweighs the threat of diminished impartiality or increases the politicization of judging is a debate more people should be engaging in. What is certain is that there is an alternative to the federal judicial appointment system. Electing judges, even in a post Citizens United era may not have the corrupting effects on impartiality many fear. Yet, with the recent scandals that have wreaked havoc on the Pennsylvania Supreme Court one cannot help but wonder if the appointment process at the federal level is superior.