Judges - Political Pressure

Judges -- Political Pressures

Some ninety percent of judges nationwide face election at least once. In New York State, county court judges -- who preside over criminal trials and pleadings -- are elected to ten-year (renewable) terms. Appellate court ('Department,' intermediate-level) judges are also elected to ten-year terms. New York State Court of Appeals judges, on the other hand, are appointed, as are federal district and circuit court judges.

P28 [266] "Since the mid-nineteenth century, the majority of U.S. states have subjected at least some of their courts to popular elections; roughly ninety percent of state general jurisdiction judges are currently selected or retained this way. No other advanced democracy elects any sizeable portion of its judiciary." *

Throughout this site, for purposes of brevity sources are abbreviated ('A1,' etc.). However the titles of some are so good, the bear repeating outside of the 'Bibliography' itself. The following is one of them:

"Wanted: Better Judgment, Fewer Crowd-Pleasers and Lick-Spittles"

E5 "Barack Obama wasn't the only person elected by American voters this month [November, 2008]. They also cast ballots for thousands of state-court judges, after expensive, rancorous campaigns. No other nation in the world chooses judges by this...method, as Sandra Dea O'Connor...has noted. In her view that is because most countries know 'you're not going to get fair and impartial justice that way'...[I]n America, where some 60% of state appellate judges and more than 80% of state trial judges face contested election, noisy political contests certainly contribute to an endemic lack of confidence in the judiciary..."

S15 [360] "In some states, judicial selection procedures make state court judges vulnerable to political pressures that compromise the protection of legal rights for disfavored and unpopular criminal defendants. Partisan judicial elections, in which candidates promise to resist protecting the rights of criminal defendants and prisoners, cast doubt on the fairness, independence, and reliability of post-conviction appeals."

Although most criminal defendants could safely be said to be 'disfavored and unpopular,' surely, this was particularly true of Nickel .

His appeal was ruled on in 2005. Justice Karen Peters was the only judge on that (5-member) panel who disagreed with reducing Nickel's sentence. As Nickel's appellate attorney wrote: "Judge Peters is up for re-election in 2006. Need I say more."

A11 [23] "The fact that many state court judges must run for reelection may also sometimes affect their ability to address constitutional issues dispassionately. Judges know that political opponents can exploit decisions supporting the rights of criminal defendants, and that such decisions can jeopardize their careers...[24] Moreover, a substantial body of research indicates that elections significantly impact judicial decision-making. A recent study of the voting patterns of Wisconsin Supreme Court justices found that a number of justices voted differently in the last two years of their term -- as they approach re-election."

C26 [173] "[J]udges in some...states hand out death penalty sentences far more often when they are up for re-election. A strong relationship has been observed between election years for judges and the likelihood that a defendant will get the death sentence."

[174] "[A]nalysis of the Wisconsin Supreme Court suggests that justices are less likely to protect defendant and prisoner rights once justices have experienced elective politics compared to the time periods following a gubernatorial appointment. In looking at Wisconsin Supreme Court criminal cases from 1986-2001, justices appointed by the governor were fifty percent more likely to vote for a criminal defendant's claim than they would in later elected terms, or if they had been elected to their first term. On the other hand, those justices who immediately faced electoral pressures and were elected in the first term are sixty percent more likely to vote against a defendant's claim in the first term. These findings complement research done on other state courts suggesting that judges vote strategically by conforming with public opinion and refraining from dissent if they have to run for election or if they have won election by a narrow margin in the past.

"The concern of a judge is not necessarily that he or she may violate public opinion, but more precisely, that someone will draw attention to a specific violation during an election. In other words, judicial [175] independence is sacrificed because the cost of a controversial decision may be to stir up a contestable and provocative issue for a future opponent. Hence, changes in voting behavior are more likely in high profile cases.

"California Supreme Court Chief Justice Rose Bird's 1986 electoral defeat can be attributed to her resolute opposition to the death penalty and overturning a series of death sentences. In 1999, Wisconsin's Chief Justice Shirley Abrahamson's sole dissent in a sexual predator case was used against her in the election campaign, and the advertisement implied that the chief justice's presence on the court would allow sexual predators to prey on children. Thus, even in the absence of evidence about other types of cases, the election effects on criminal cases is sufficient to switch to a different selection method."

'Changes in voting behavior are more likely in high profile cases.' Nickel's was certainly such a case.

D8 [674] "[W]hat elected judge would want to be known as the judge who released a sex predator on a technicality, or because the evidence of dangerousness was insufficient? What would happen if the sex predator did, in fact, commit a new sex crime? Clearly, pressures at force in state legal systems would allow a reasonable person to question the efficacy of rulings by popularly elected judges because in this context the temptation to do the popular thing is extremely high."

Judge Paul Czajka clearly could not resist it in Nickel's case. (Indeed, when asked by a reporter for comment after being convicted, Nickel stated that what happened wgas "politically easier.") The same could be said of Nickel's appellate panel which, though reducing his sentence, still affirmed each and every one of the four felony counts he was convicted of.

B9 [329] "Several steps should be taken to insulate judges from political pressures. The first and most fundamental is to end direct elections and retention elections for judicial office. The elimination of judicial elections is needed not only to prevent the problems discussed here, but also because of the increasing tendency of special interest groups to buy judges by spending huge sums on judicial campaigns.

"Executives should appoint judges on the basis of merit from a list of nominees provided by a nominating committee. They should be appointed for long terms or for life. And at the end of the term, the judge should be evaluated by a judicial qualifications commission based upon the entire term of office."

G1 [146] "Up until recently, judges in this country did their job in virtual anonymity...But this is rapidly changing. The politicization of the criminal justice system has given rise to judges having to look over their shoulders for fear that even the most innocuous ruling could backfire and produce a front-page newspaper article or a mention on television that would be run over and over in an election campaign against them...[J]udges have been forced to behave more like politicians, concerned about public opinion and worried that every decision could later be scrutinized and [147] second-guessed if things go wrong...We agree that judges should be held accountable -- just not by voters. Virtually every state has a judicial performance board that serves as a watchdog for judges whose behavior is inappropriate."

B5 [791] "Whether the 'hydraulic pressure' of public opinion that Justice Holmes once described and the political incentives accompanying it are appropriate considerations for publicly elected prosecutors is doubtful, but clearly such considerations have no place in the exercise of the judicial function. Yet in jurisdictions where judges stand for election -- often with the prosecutor in a position tantamount to that of a running mate -- judges are subject to the same pressures.

"Justice Byron White once observed, 'If a judge's ruling for the defendant. . .may undermine his fate at the next election, even though his ruling was affirmed and is unquestionably right, constitutional protections would be subject to serious erosion.' Justice William Brennan noted that...'Passions, as we all know, can run to the extreme when the State tries one...accused of a crime that -- for whatever reason -- inflames the community. Pressures on the government to secure a conviction, to "do something," can overwhelm even those of good conscience. When prosecutors and judges are elected, or when they harbor political ambitions, such pressures are particularly dangerous. Rulings in a publicized case can have major political effects, such as loss [793] of one's position, and judges are aware of this as they make controversial decisions..."

"The American Bar Association's Commission on Professionalism found that 'judges are far less likely to. . .take. . .tough action if they must run for reelection or retention every few years.'"

P14 [2] "[N]othing protects an elected judge who enforces the Constitution from an angry constituency that is concerned only about the end result of a ruling and may have little understanding of what the law requires. Judges who must keep one eye on the next election cannot resist the temptation to wink at the Constitution."

B5 [544] "A judge's loyalty to the roots of his or her power results in their adoption of the amoral attitude of aligning a decision to be consistent with them, and not to the letter or spirit of the law. Thus when a judge actually exercises the independent judgment one would expect from such a person on a daily basis, it is not only noteworthy, but it can be suicidal for his or her career."

B5 [814] "The difficulty of ensuring both equal justice under the law and the public perception of a fair and independent judiciary when judges must stand for election was described by Justice Cornyn of the Texas Supreme Court:

'Implicit in our national creed of "equal justice under the law," is the idea that judges are not respecters of differences of persons. But when judges are required to be political animals, the hard decisions that they are frequently called upon to make can too readily be cast as essentially corrupt, and excoriated as payoffs to political constituencies, instead of appearing to be the products of serious reflection and lofty principle. If true, such conduct should be condemned in the harshest terms. But if charges of political judging are false, our elective system can be viewed only as giving tacit credence to such an accusation.'"

[816] "Every new election reminds state judges of their vulnerability to popular sentiment. Such constant reminders make it politically and practically impossible for many judges to enforce the Constitution when doing so would be unpopular."

[826] "So long as judges are subject to election or retention, the discretion of trial judges on crucial matters should be limited by objective standards that are carefully reviewed on appeal and in postconviction proceedings. Reviewing courts should acknowledge the reality of the political pressures on trial judges, and, where the potential for such influence is present, they should carefully scrutinize the rulings without the normal deference accorded to trial judges."

There is not the slightest indication, in any of the appeal decisions in Nickel's case, that the reviewing judges acknowledged or recognized this political reality.

----------------------------------------------------

* [from FN2:] "See Herbert M. Kritzer, Law Is the Mere Continuation of Politics By Different Means: American Judicial Selection in the Twenty-First Century, 56 DePaul L. Rev. 423, 431 (2007) (stating that judicial elections are used outside [the] United States only in various small Swiss cantons and in Japan for its highest court retention elections.)"