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September 21, 2009

Is that an elected county judge in your pocket?

Or are you just hugely happy to see me?


Quick and dirty re: elected state judges and campaign money.

We've followed and written a lot on the U.S. Supreme Court case about a popularly elected state supreme court judge, and campaign money recipient, who failed to disqualify himself in arguably suspect circumstances. The Court ruled in June of this year that a West Virginia judge should indeed have disqualified himself from hearing an appeal of a $50 million jury verdict against an a coal company because its CEO had been a major campaign donor. See slip opinion in Caperton v. Massey Coal Company (June 8, 2009).

The popular election of state judges--permitted in some aspect in a clear majority of the states--give the appearance of justice being "for sale". Elected judges can be especially "bad" for good clients who do business all over the U.S. and the world. Even when elected judges are "good"--and, to be fair, there are some great ones--state systems of popularly-elected judiciary will never inspire much confidence. Elected jurists who hear and decide business disputes are steeped in a taint.

The point: Judges should not have "constituents", i.e. law firms, and their clients, who make campaign contributions. Right now, in most American states, they do. And there is no way to dress that up.

Generally county-based, American litigation at a state level is already frustratingly local and provincial for "outsider defendants"--businesses from other U.S. states and other nations sued in local state courts--who cannot remove to federal court, the forums where federal judges can and should protect them from local prejudice.*

American states which still hang on to electoral systems look increasingly provincial, classless, and silly from a global perspective. Merit selection is not perfect--and also poses risks. But it is far better than what most American states currently have in place. Time for American states to grow up. See our many past posts over the last four years on this subject in our category on the right side of this site: Federal Courts.

*One reason that federal diversity jurisdiction was created in the first place was because of the framers’ concern that prejudices of state judges toward out-of-state persons would unfairly affect outcomes in trial courts. Erwin Griswold, Law and Lawyers in the United States, 65 (Cambridge, Harv. Press 1964). Over 200 years later, our current systems in the states make that local prejudice almost inevitable. See also, the interview of General Electric's Mike McIlwrath in July 2009 of Prof. Geoffrey Hazard of Hastings Law School, who addresses why European business really fear U.S. state courts.

Posted by Rob Bodine at September 21, 2009 11:59 PM


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