One of my partners has a case involving multiple law firms, some from states other than Arizona. The other day he was talking with one of these out-of-state lawyers, and the fellow excused himself because he needed to get off the phone and leave for a fundraiser for some local judges. His parting comment: “We buy our judges here, and I have a full shopping cart.”
We live in a capitalist society. Accordingly, we each live our lives with the general understanding that the more you pay for a good or service, the better it is expected to be. For example, we all have a certain set of expectations for the quality of service we’re likely to get at a chain restaurant where the average entrée costs $15, and an entirely different expectation if we’re paying $75 per entrée at a gourmet establishment. Pay more and you get taken better care of – so says capitalism.
Consider this, though: do we want this rationale applying to our superior court judges? Shouldn’t we have an expectation that the judge in a case is completely impartial, and will rule only on the facts and law before him/her? Most of us would answer “Yes, of course,” without hesitation. And yet, most of us live in jurisdictions where trial-level judges are elected, and so rely on private contributions to fund their campaigns. In 29 of the 50 states (58%), trial-level judges secure their office by winning a general election. In only 15 states (30%) are all of these judges appointed via a judicial merit system. The other 6 states (12%) – including Arizona – operate with some mix of merit selection and general election.
In Arizona, only counties with a population of more than 250,000 are required to seat judges via merit selection. Currently, that is three counties: Pima, Pinal, and Maricopa. The remaining twelve counties still all select judges by requiring them to solicit donations, run campaigns, and win an election. This guarantees that, at least every now and then, that judge is going to preside over a case where one party gave him money (maybe a lot) for his campaign, and the other party did not. The judge involved could be as honest as the day is long, but if the campaign contributor in this hypothetical case winds up winning, we would all have the right to question whether that money bought a favorable outcome.
Electing judges is a bad idea. Always has been. An elected official, like a mayor, is expected to give voice and action to the will of the people who elected her. But a judge is not called to express the will of the electorate. A judge is charged with dispassionately applying the law – even when that is contrary to the will of the majority. It may seem counter-intuitive, but selecting judges via a general election is decidedly undemocratic. It exposes the judicial system, which is supposed to be neutral in all things, to the influence of power and money. It will cause us naturally to wonder, in every case, if the party that won was the guy with the bigger shopping cart.