To many legal observers, Caperton v. Massey is the poster child for scrapping judicial elections. The American Bar Association has recommended that states select judges through political appointments rather than popular elections, and many legal experts agree that elections and judging are incompatible. But there are some good reasons to elect state court judges, starting with the fact that state court judges (unlike federal judges) are actually charged with making state law. State courts are "common law courts," meaning that the judges in those courts can shape the rules that govern disputes over contracts, torts, and property, at least when state legislatures have not passed legislation in those areas. As with any other lawmaking body, it makes sense to ensure that the state judiciary is accountable to the people subject to those laws. In any case, the many states that have elected their judges for centuries are not about to abandon that method because the ABA tells them to.
But acknowledging that judicial elections are here to stay does not mean we have to accept spectacularly dysfunctional electoral systems like the one on display in West Virginia. If a state plans to embrace judicial elections, it should shield judges from having to collect campaign donations from the very groups that appear before them. Otherwise, they'll be beholden to the parties that come before them. That's even worse than the effect of lobbying on legislators.
The benefits of electing judges must be accompanied by restrictions on the manner in which those elections take place, and the cases on which the judges can sit. Two states have adopted public financing for judicial elections, and a move toward public financing is being considered in half a dozen more. Public financing hangs onto the rewards of electing judges but ensures that judges do not take the bench owing favors to those who supported them. The downside, of course, is that taxpayers have to ante up. But those are tax dollars well spent. State governments are willing to shell out lots of public financing to entice corporations to relocate to their state, and a healthy judicial system is attractive to any business.
Admittedly, public funding for other offices has not always succeeded at the federal level. Candidates for president and for Congress have proven adept at finding loopholes in the laws, and some have opted out altogether. But there are good reasons to think campaign finance reform will be more effective at limiting abuses in state judicial campaigns. The key to making public financing work is to enact it along with rules that bar judges from sitting in cases that involve their erstwhile or would-be campaign contributors. States need to disqualify elected judges from hearing cases involving anyone who spends money to get them elected. Once judges are barred from sitting on such cases, people like Don Blankenship will have no incentive to funnel money their way. Without big spenders to bankroll their campaigns, public financing will look pretty good to judges, as will the smaller contributions that are still permitted under such a system. Together, public funding and strict disqualification rules can prevent debacles like the one West Virginia put on display.
And even if they don't go the public financing route, states should put an end to the current practice that leaves it up to an elected judge to decide whether he or she can be fair. At a minimum, judges should be automatically disqualified from hearing cases involving large contributors. Even when the conflict is less clear, the decision about recusal should be made by the judge's colleagues, or a specially convened body of judges from elsewhere, not the judge in question herself. The Supreme Court should hear Caperton v. Massey and say as much. And either way, the states that have yet to make these reforms should follow the ones that have. The inevitable analogy is that otherwise, we're asking the fox to decide whether he should be guarding the henhouse. Or Justice Brent Benjamin if he would reverse a $50 million verdict against the company headed by his principal campaign supporter.