SEPTEMBER 2006

Dean's Column

CONFLICTS OF INTEREST – JUDICIAL SELECTION

BY DEAN RICHARD MORGAN, BOYD SCHOOL OF LAW

Last month, I wrote about the importance of the independence of the judiciary in the context of conflicts of interest and their effect on impartiality.  This month, I continue the theme of judicial independence, this time in the context of judicial selection.

My purpose in raising this subject is not to advocate any particular selection process, although I do have an opinion on that subject. Rather, my purpose is to discuss some of the risks to judicial independence that can arise from either of the processes – appointive or elective – with the hope that the bench and bar will exercise community leadership in an effort to avoid or minimize these risks.

In either system, there is a risk that judges – who, after all, are human beings – will be influenced in their decisions by popular opinion that may be inconsistent with the rule of law.  Particularly in a legal system that protects individual rights and promotes freedom, there are bound to be decisions – e.g., to throw out evidence, to protect adult entertainment, to overturn unconstitutional legislation – that are unpopular with the public, even though they are consistent with and required by the rule of law.  Faced with the prospect of an unpopular decision, our judges need, to the fullest extent possible, to put aside the political consequences and rule on the basis of the law.  This, however, is harder to do when the judge knows that he or she must face an electorate which is upset about an unpopular decision.  Of course, appointed judges will also be aware of popular opinion, but they are less likely to be swayed by it than those judges who must seek the approval of the voters every few years

In a perfect world, the citizenry and electorate would applaud and support judges who uphold individual rights and the rule of law.  While this is not that world, the bench and bar should work to make it so, by taking every opportunity to educate the electorate about our constitutional system and about the important role that judges play in protecting  individual rights, usually those of unpopular people, while adhering to the rule of law.  While it may not be possible to convince everyone that a good judge and popular decisions do not necessarily go hand in hand, the bench and bar working together ought to be able to convince community and media leaders of that proposition.

While popular opinion may bear more heavily on those judges who are elected rather than appointed, appointed judges are not free of pressures.  No matter what appointment process is used, those who seek appointment to the bench will engage in a good deal of lobbying to secure the position.  Thus, in the process of gaining his or her appointment, the judge may become indebted to the person or persons who supported and made the appointment.  And, in our imperfect world, it may be that those persons will expect favors from the appointee.  The right response to that expectation, however, is for the judge to refuse – for reasons of conflict of interest – to participate in any matter involving those persons. 

Just as appointed judges have help in lobbying for and securing their appointments, so too do elected judges have help in winning their elections.  In the electoral field that help comes in the form of money – campaign contributions that allow the nominee to compete effectively for the judgeship.  As in the case of appointive politics, it is certainly possible that a judge who receives campaign contributions from a contributor will become beholden to that contributor.  If that is the case, the judge should decline to participate in any matters involving that contributor.

However, since the people most interested in the courts are attorneys and their clients, it is not surprising that most of the support for judicial campaigns comes from law firms, lawyers, businesses and others with frequent business in the courts.  If the consequence of providing financial support to a good judge is that the donor may not be able to appear in his or her court because of the judge’s conclusion that a conflict has been created, that donor will not be inclined to contribute to judicial campaigns.  Thus, if we are to maintain an elective system in which judges might be expected to recuse themselves from cases involving donors to whom they are indebted for campaign support, we will need to change the way in which we finance campaigns for judicial office.

While the whole area of campaign finance law is muddled and confused, it is an area that needs serious thought in the context of judicial elections.  If we continue to elect our judges, we need to figure out a way to bring campaign funding to them without creating conflicts of interest. Judge Adams of the Second Judicial District has proposed a way to immunize judicial candidates from the contribution process by having others do the fundraising and accounting, without the involvement or knowledge of the candidate.  In this way, that judge will not be conflicted by knowing the identity of donors and the amounts of their donations.  This may or may not be a good solution to the problem, but it is at least a good place to start the discussion of how we can continue to involve lawyers, law firms and businesses in the financing of judicial elections without creating conflicts and recusals which will cause them to terminate their campaign support.

Judicial independence and the rule of law are important foundations of this country.  From time to time we should examine our systems and procedures to make sure that they are being maintained.  Now is a good time to do that.