WASHINGTON — Supreme Court justices are expressing increasing concern about state judicial elections, fearful that the increasing unruliness and politicization of campaigns threaten the ideal of judicial independence.
So why does the Supreme Court keep issuing decisions that only seem to make judicial elections more raucous and political?
“The First Amendment made me do it,” is how the justices might respond.
Yesterday, for the second time in recent years, a Supreme Court ruling written by Justice Antonin Scalia has invoked the First Amendment in a way that thwarts efforts to make judicial elections more civil.
In the 2002 ruling Republican Party of Minnesota v. White, the Court struck down an ethics rule that restricted what judicial candidates can say on the campaign trail. Retired Justice Sandra Day O’Connor has said she now regrets providing the fifth vote for that decision, which she says has helped fuel partisanship in judicial elections.
This week, citing the First Amendment associational rights of political parties, the Court upheld New York’s party-dominated method for selecting judicial candidates. The conflicting First Amendment claim by insurgent candidates who say they cannot break into the party selection system has no merit, Scalia said. “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.”
And while the ruling in New York State Board of Elections v. Lopez Torres was unanimous, two justices — Anthony Kennedy and Stephen Breyer — joined in a concurring opinion that politely but firmly criticized judicial elections like New York’s.
“The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges,” wrote Kennedy. “And it may seem difficult to reconcile these aspirations with elections.”
But since most states have chosen to elect their judges, Kennedy continued, states must find ways to improve their election systems to ensure, as much as possible, that the most qualified candidates attain office. “The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.”
The Kennedy concurrence concluded with a plea to New York to change its judicial election system now, if its laws “do not produce both the perception and the reality of a system committed to the highest ideals of the law.”
Justice John Paul Stevens also wrote a concurrence that attacked New York’s judicial election system while not criticizing judicial elections in general. “I think it appropriate to emphasize the distinction between constitutionality and wise policy,” Stevens wrote, invoking the late Justice Thurgood Marshall’s axiom that “The Constitution does not prohibit legislatures from enacting stupid laws.”
At issue in the case was New York’s method for choosing candidates for the Supreme Court — that state’s trial-level court. Since 1921, candidates have been picked at tightly-controlled party conventions in each judicial district. Margarita Lopez Torres, a judge on a civil court in Brooklyn, claimed that because she was unwilling make patronage hires for her court staff, party bosses shut her out from a Supreme Court nomination at three separate Democratic Party conventions.
She and other candidates who had similar experiences sued, claiming the system violated their free-speech rights. Lower federal courts agreed, with the 2nd U.S. Circuit Court of Appeals finding that candidates have a First Amendment right to “a realistic opportunity” to participate in a party’s nomination process without severe or unnecessary burdens.
But the only First Amendment right Scalia found was that of a political party to “limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce a nominee who best represents its political platform.”
Scalia portrayed the claim of Torres as a form of sour grapes. “None of our cases establishes an individual’s right to have a ‘fair shot’ at winning a party’s nomination,” Scalia wrote.
If the system produces one-party domination of the process, Scalia continued, that is only because voters approve of the positions and candidates that party puts forward.
“The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference,” Scalia wrote. “It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.”
The high court decision may be viewed as “a deathblow to the judicial selection reform movement,” according to Judicial Reports, a Web site that tracks judicial elections and reform in New York.
But the Brennan Center for Justice, which represented Torres in her battle, said reform efforts will continue. Scalia’s opinion explicitly noted that New York is free to change its judicial selection process, even though the First Amendment does not require it.
“The plaintiffs are considering further litigation options. In the meantime, we urge the political, civic and bar leaders who stood up for reform to continue to stand with us, demanding legislation that will end the closed process, which has, for too long, undermined public confidence in New York’s courts,” said Frederick A.O. Schwarz, Jr., Senior Counsel at the Brennan Center.
Torres, pointing to the Stevens and Kennedy concurrences, added, “The Supreme Court's decision should not, by any means, be read as endorsing New York's flawed system.”