How election-by-questionnaire is threatening independent judges.

The law, lawyers, and the court.
Oct. 19 2005 3:18 PM

Promissory Notes

How election-by-questionnaire is threatening independent judges.

The Beltway betting pool over Harriet Miers' views on abortion has gone national, as a 1989 questionnaire was released yesterday showing Dallas City Council candidate Miers scoring a perfect 10 with a Texas anti-abortion group. The president's spokesman tried to wave it away: "What we take that to be is a candidate expressing her views during the course of a campaign. The role of a judge is very different from the role of a candidate or a political office holder."

Actually, 87 percent of America's 11,000 state judges are candidates—in traditional races or running solo in "retention elections" where voters keep or fire them. Most toil in obscurity, trying to convince bar associations, civic groups, and editorial boards that they have the experience, intellect, and temperament to deserve black robes. But during the last decade, more and more special-interest groups have been working to install "their" judges on the bench. Their secret weapon? Old-fashioned candidate questionnaires, just like the one Miers filled out in Texas. And the rule for these questionnaires? The pushier the better.

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Many of the state judicial surveys make the angst over Miers' religious background look rather quaint."You've got ten commandments, you've got ten questions," said Jim Zeigler, the head of Alabama's League of Christian Voters last year, mulling over whom to endorse on 200,000 mock ballots he mailed out before the Republican primary. Question 1: "Are you a born again Christian? Please give your testimony." Question 7: "What actions have you personally taken on the issue of pro-life?"

In 2000, Alabama's Christian Coalition asked all judicial candidates to agree with the following statement: "Leaving aside entirely the relevant U.S. Supreme Court and/or Alabama Supreme Court precedent about the legal status of an unborn child, I as an individual believe that an unborn child is a fellow human being, imbued with a soul by its Creator."

Social conservatives didn't invent judicial hardball—just ask Robert Bork—but in the states, they are the undisputed leaders in these new questionnaire wars. Idaho's Christian Coalition pressed would-be judges to agree with their statement that "God's Laws or Natural Laws have a high[er] authority than laws enacted by the United States Congress or the Idaho Legislature"; that "the United States Constitution is Christian-based"; and to agree to display the Ten Commandments in their courtroom. A 2003 Pennsylvania Catholic Conference survey asked judges to state positions on abortion, cloning, stem-cell research, gay adoption, and insurance coverage for contraceptives. The anti-tax Nevadans' Judicial Information Committee included a boilerplate question about the public-service records of potential judges but cautioned that "too much 'feeding at the public trough,' however, may sometimes bias a candidate's philosophy toward 'public' rather than 'private' solutions to society's problems."

Until a few years ago, judicial candidates could safely throw such nosy and coercive queries right into the round file. State judicial ethics codes prevented judicial candidates from campaigning like ordinary politicians, so their impartiality on the bench wouldn't be compromised by wedge-issue pressure. But a 2002 Supreme Court decision, Republican Party of Minnesota v. White, forced states to loosen their rules. By a 5-4 vote, the court struck down a rule barring a candidate from "announc[ing] his or her views on disputed legal or political issues." Wrote Justice Scalia: "[E]ven if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so." (Only one of the nine justices, O'Connor, had ever run for a judgeship.)

"This opens a Pandora's box," warned the president of the American Bar Association, when White came down, and he was right. Smart interest groups immediately used White to begin demanding public answers from reluctant judges. Just weeks after the decision, Indiana Right to Life sent questionnaires to all state judge candidates, seeking their positions on abortion rights, assisted suicide, and in vitro fertilization. "Candidates not responding," the group warned, "will be identified as 'Refused to Respond' on our voter education materials." It hardly bears mentioning here that "Refused to Respond" is the kiss of death from an interest group. In a North Carolina Supreme Court race last year, a newcomer who condemned state funding of abortion narrowly edged out a popular appellate court judge who had refused to respond to a questionnaire.

A growing number of judges are learning what it takes to avoid being Swift-Boated from the left or right. "I am pro-choice and proud of it," Democrat Max Baer wrote in answer to a questionnaire from the National Abortion and Reproductive Rights Action League of Pennsylvania (which also cited White in demanding a response). 

In the wake of White, questionnaire answers are also helping determine which judicial candidates can tap into big money, powerful endorsements, and platoons of grass-roots support: In a single Illinois Supreme Court race last year, candidates raised $9.3 million—exceeding 18 of 34 U.S. Senate races—much of it from lawyers and interests with cases before the court. Eight other states broke Supreme Court fund-raising records last year. The public is cynical: Three of four Americans already believe that campaign contributions to judges affect the outcome of cases. Even worse, more than 25 percent of state judges agree.

Can courts escape these special-interest shakedowns? Can a judge reject interest-group bullying and still be elected? In Georgia last year, Supreme Court Justice Leah Sears rebelled, winning re-election despite her refusal to answer Christian Coalition questions. Many states are setting up campaign-conduct committees  to hamper interest-group mischief and encourage candidates to resist the rising tide of pressure. North Carolina adopted public financing  for appellate judicial races to free judges from dialing for dollars; the money chase leveled off and candidates lined up to get in. Nonpartisan voter guides can help bring more ordinary citizens to the polls, diluting the power of special interests to tip low-turnout judicial races by turning out their base. 

Above all, Americans need to be reminded that courts of law were not designed to deal with the kind of political pressure being generated by this bitter era of Red vs. Blue. As John Roberts reminded us during his confirmation hearings, judges shouldn't make promises in advance to interest groups in exchange for their gavels. We pay legislators and executives to sort out interest-group demands, to make the right promises and stick to them if they're elected. But courts are supposed to decide cases one at a time, based only on the facts and the law before them, instead of being held to broad promises made in response to political ultimatums.

As 30 states prepare for Supreme Court races next year, keep an eye on Kentucky, where 261 of the state's 266 elected judges will be on the ballot. Under pressure from a group called the Family Trust Foundation, the state high court will allow campaign statements that appear to commit judges to positions in advance of a case being heard. Judges there ought to stock up on No. 2 pencils: They're going to have a lot of forms to fill out next year.

Bert Brandenburg is the executive director of the Justice at Stake, a nonpartisan national organization.

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