Approximately 80 percent of the states (39) chose some of their judges by popular election. Political campaigns require money, and that generally comes by way of contributions. One notable exception is judicial candidates who are entirely self-financing, that is, who are so rich they do not need anyone else’s money. The number of judicial candidates who are completely self-financing is so small that we can round it out to zero.
Americans are ambivalent about judicial elections. Almost 70 percent of us think that judges are more likely to rule in favor of people or institutions who give them campaign contributions. Yet, nearly as many (65 percent) want to elect judges. State polls are similar. Over 80 percent of North Carolina voters “are concerned about how judges raise money for their elections,” and nearly 75 percent think that judicial campaign contributions “influence judicial decisions.” Nonetheless, over 80 percent “preferred the election of judges over appointment.”
The polls tell us that people, in general, are concerned that justice is for sale, yet a similar large majority does not want to change the present system. How to explain the incongruence? The polls appear to tell us that the people are not concerned about their judges—the ones they elect—but they are concerned about judicial elections in general. Perhaps when the pollster asked an individual whether there is the appearance of impropriety, many people think that they should say yes because they do not want to appear to be ill-informed. Still, that is only a guess.
The “appearance of impropriety” is an unusual concept. It tells us that something is not improper, but appears to be. Does it appear improper by one who knows all the facts or one who is not well-informed? If it were the latter, there would a lot of improper appearances. For example, assume that a disgruntled person sues John Roberts, the Fox News correspondent (formerly of CBS & CNN) for defamation. Libel cases raise free speech issues, and let us assume that this case gets to the U.S. Supreme Court. If so, we might have a situation where John Roberts, the Chief Justice, decides a case titled, John Doe v. John Roberts. The uninformed person (the one who just skims the headlines or surfs the web) would conclude that the Chief Justice is involved in an appearance of impropriety because he is deciding his own case. The informed person knows that there is no problem.
The “appearance of impropriety” must be referring to the appearance from the perspective of a well-informed observer. If that is true, we have to ask ourselves, what is something that is not improper but appears improper from someone who knows all the facts. It is hard to develop a test that we can use to define that situation.
It is easy to think of the “appearance of impropriety” as a reason for a broad rule rather than a rule itself. For example, a rule that a judge must disqualify himself in a case if he owns even one share of a corporation that is a party to the litigation (by the way, that is the law for federal judges) is a rule that we justify by the “appearance of impropriety.” We do not want a judge to decide a case based on the possible effect on his or her stock holdings, so we tell the judge that, out of an abundance of caution, the judge must always disqualify. That rule is also a bright-line rule. It is easy to apply and easy to enforce.
In contrast, it is much harder to think of the “appearance of impropriety” as a rule itself, because the rule is just too vague. To tell a judge that he or she must disqualify because something is not actually improper to anyone who knows all the facts, but “appears” to be improper to some others is to impose a rule that is, frankly, quite elusive.
That difference might have something to do with the incongruent poll results. Perhaps people think that there must be something bad about contributions to judicial campaigns, so they appear improper, but these same people do not worry about the judges they know, the ones they elect. Still, this is only a guess.
We have very few empirical studies that relate judicial campaign contributions to judicial decisions. The dearth of information is surprising because one would think that this proposition should be easy to examine as a statistical matter. While legislators or members of the executive branch deal with many issues and interest groups, judges deal with specific parties involving particular matters. Hence, if these parties (or their lawyers) give the judges campaign contributions and the judges then rule in favor of these parties (or their lawyers), that does not necessarily mean that judges are corrupt, but it does mean that people’s fear regarding the impartiality of judges is reasonable.
One study focused on the State of Illinois. It covered three election cycles. In 34 percent of the cases that the Illinois Supreme Court decided, either a party or the lawyer for a party was a campaign contributor. The vast majority of campaign contributors had no cases before the state supreme court, and most litigants who appeared before that court made no campaign contributions. One-third of the funding for judicial candidates came from political parties and the candidates themselves. The contributor-litigants gave 6.6 percent of the money that the candidates raised. Less than 4 percent of the lawyers who appeared before the Illinois Supreme Court contributed to a winning judicial candidate.
The average political contribution was only $645, but 68 contributors gave $5,000 or more during the period studied. Of these major contributors, only seven appeared before the court, and they lost as many cases as they won. Of the top contributors, one gave over $11,000, appeared in three cases, and lost all three. The next highest gave nearly $10,000, appeared in two cases and lost both.
About a decade ago, the Chicago Daily Law Bulletin focused on tort opinions and judicial campaign contributions. It found no correlation between campaign contributions and favoritism to tort plaintiff lawyers who had contributed to the judicial campaigns of the justices of the Illinois Supreme Court. Tort plaintiffs lost in nearly two-thirds of the tort cases the justices decided since February 2001, although tort plaintiff lawyers were heavy contributors to the Democratic-controlled Illinois Supreme Court. One prominent Chicago personal injury lawyer had given over $63,000 to Supreme Court judicial candidates in just one year (the year 2000). He responded to this Chicago Daily Law Bulletin study by saying, “Had I known ahead of time that the candidates were going to take two-thirds of the cases and decide them in favor of [the defense], I would have donated the money to a good charity.”
The fact that there is no statistical correlation between the major contributors to the campaigns of justices of the Illinois Supreme Court and success before that court―the fact that major contributors were just as likely to lose cases before these justices―does not prove that the contributions were not corruptive. Perhaps, if the contributors had given less, they would have lost even more than half of their cases. Nonetheless, the statistical evidence is relevant because it demonstrates no statistical evidence supporting the claim of corruption.
Another study by the State of Michigan found “no statistical evidence of a connection between contributions and results.” Michigan’s judicial campaigns, unlike those in Illinois, are nonpartisan. The law firm that gave the most to Michigan judicial candidates, over five election cycles, gave over $344,000. Only 12 percent of that money went to candidates who won the election to the state supreme court. During the law firm’s contribution period, it was involved in 19 cases (not including filing four amicus briefs). Of those 19 cases, the firm won three, lost four times as many (12), and got split decisions in four.
We need more work in this area. While one can say that the plaintiff or defendant won the appeal, appellate cases are often complex, so it may be difficult to determine whether a decision is a complete victory for any party. The plaintiff (or defendant) may win, but the ruling of law may not be exactly what the litigant desired and might come back to haunt the litigant (particularly if the litigant is an institutional litigant often before a court, like a major corporation or a union). Even if a campaign contributor wins a case, perhaps he or it might have won anyway, so that the contribution was superfluous. The lawyer may have contributed to one justice, while the lawyer’s client contributed to another, and each of the justices may vote differently on the same case.
This is a fertile field for researchers to do more statistical work. What we do know is that the statistical evidence that exists does not justify painting with a broad brush and assuming a tit for tat between campaign contributions and judicial decisions. Nor can we assume that laws restricting campaign contributions (which always raise free speech problems) are necessary because corruption is inevitable.