Electing Judges or Appointing Them a Question for the Courts

¶ … campaign financing in the election of judges and cites numerous studies which illustrate correlation between campaign donations and favorable court rulings. The point of the article is to highlight a possibly damaging policy that could be creating a perverse criminal justice system. Skaggs offers a number of solutions to the issue, each of which could conceivably address the problem. The best solution is to make elections dependent upon public financing, which would eliminate Big Money from the process; or it should be necessary for judges to show who has contributed to their election so that bias could be determined by litigants before a case goes to trial. This would ensure that the criminal justice system is kept honorably above board and it would also promote a more Christian sense of propriety on the judiciary's part, as the idea of judges being "bribed" by campaign donors would become obsolete along with the process.

Campaign Financing

Skaggs (2010) lays out the reasons why campaign financing is adversely affecting the judicial system in his analysis of the impact of campaign contributions on the independent judiciary. Skaggs (2010) notes that according to recent studies, "elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases" (p. 3). What this finding indicates is that the elected judiciary is very likely being bribed by special interests, lobbyists, and campaign donors; the financiers provide the funds for the judge's campaign and when the judge wins the election, he/she is beholden to the donors who backed his/her run for election. It is a system of bribery directly condemned by the Old Testament Christian Bible: Deuteronomy 16:19 warns clearly, "Do not accept a bribe, for a bribe blinds the eyes of the wise and twists the words of the innocent." Yet, in modern day politics, it appears that bribery is law so long as it is performed in the name of "campaign financing." Indeed, another study cited by Skaggs (2010) showed that in the state of Ohio, elected judges had ruled "in favor of their campaign contributors 70% of the time" (p. 3). In short, if these contributions are not just buying outright the favor of the judiciary, there is a large coincidence in that percentage.

From a criminal justice standpoint, the role campaign financing in the election of the judiciary is clearly a problematic issue. Big Business is buying the favor of judges and ensuring they get placed on the bench in exchange for rulings and decisions that benefit Big Business. It is a form of crony capitalism that is clearly denounced by the Christian perspective and the Bible -- nonetheless, it occurs in America with regularity, though many people deplore it (Friedman, Lithwick, 2009; Confessore, Thee-Brenan, 2015).

While correlation does not equal causation (Tufte, 2006), the fact remains that the trend shows that rulings favor donors -- and businessmen appear to know, as Scaggs shows: nearly 80% of leaders in the business world "believe campaign contributions made to judges have at least some influence on their decisions in the courtroom," which just goes to show that what is being upheld in the American criminal justice system is not necessarily the law and justice but rather the interests of those whose money went to support the career of the judiciary (Scaggs, 2010, p. 3).

This is problematic both from a criminal justice standpoint and from a biblical, Christian standpoint. From a criminal justice standpoint, it shows that the courts are essentially being bought -- rented out to the highest bidder -- or owned outright by Big Business. Scaggs (2010) calls it "cash-register justice," an apt expression for the reality (p. 4). The best answer to the issue is to dispense with judicial elections and utilize appointments to the bench instead -- as Justice O'Connor and Chief Justice Jefferson have called for. Skaggs supports this argument as it addresses the issue directly; however, it could be counter-argued that it merely kicks the can down the road, because the individual that will appoint the judge will be elected and will be accepting campaign donations; donors would know that he would be directly responsible for appointing the next judge and therefore why is it not argued that he too would be beholden to the same moneyed interests. Simply removing campaign fundraising from the judiciary does not solve the problem; financing would have to be removed from the entire electoral process. As Deuteronomy warns, bribery is a wicked and corrupting act, and should not be practiced in any God-fearing society.

Skaggs considers a second option to the issue, however, which is allowing public financing for judicial campaigns; this would take Big Money out of the election cycle and ensure that no campaign has an unfair advantage, donation-wise.

Another alternative is to allow litigants to seek disclosure of who has contributed to judges' campaigns and require recusal if it appears that a judge might be unfairly partisan to one side of a case, as a result of donations received from that side of the camp. This suggestion is common sense and should already be standard operating procedure in the criminal justice system. The fact that it is not shows how narrow the concept of justice in American courts really is. How is one to trust the system when those overseeing it are so clearly keeping secrets that would otherwise betray bias to those on trial? This is, in effect, a deceitful practice, and the bible is very clear and deceit. 1 Peter 2:1 states, the one should put aside "all malice and all deceit and hypocrisy and envy and all slander" -- and if judges taking money from future litigants is not the height of hypocrisy, then one would be hard pressed to find it. Moreover, Deuteronomy 25:16 holds that "everyone who acts unjustly is an abomination to the Lord." Thus, from a Christian perspective, it would appear that the American criminal justice system is an abomination before God, as it is riddled with injustice in the form of campaign financing for judges.

Skaggs asserts that even if this is all one big coincidence and campaign financing does not actually sway judges in their rulings, the perception that they do remains. This means that social morale is hurt and reputations of justice are damaged by the acknowledged possibility that bribery and hypocrisy could be norms within the election process. For the sheer reason of correcting this perception, the practice should be eliminated.