John Oliver Shows that Judges can be Bought and Paid For Like Any Other Politician

February 24th 2015

Alex Mierjeski

You're probably aware that many state judges are elected -- they have to run for their judgeship like mayors have to run for their positions. But admit it: it's likely not something you think about too much. But just like any other politician, to pay for a campaign, judges need campaign donations, too.

But consider the uncomfortable implications after an election, where a judge is hearing a case that might affect one of his donors. Well, it's that very definitive conflict of interest that's in the latest cross hairs of John Oliver this week:

At least $18 million in contributions was spent on state Supreme Court campaigns in 2014, according to the Center for Public Integrity. Additionally, at least $5.2 was million spent by state high court candidates on television ads, with some candidates spending exorbitant amounts on an individual basis.   

What practical effect does this have? As Oliver pointed out: "The problem with an elected judiciary is sometimes the right decision is neither easy nor popular. And yet, campaigns force judges to look over their shoulder on every ruling."

And indeed, Oliver's claims are backed up in recent research. A new study shows that spending on television ads attacking opposing judicial candidates as “soft-on-crime” television impact more than just the election. Researchers from the Emory Law School and the American Constitution Society examined more than 3,000 criminal cases across 32 states from 2008 to 2013 and found that the more television ads in state supreme court races, the more rulings against criminal defendants.

At a glance, this essentially means that unchecked money funneled into judicial elections gives prospective judges more of a competitive edge against one another, ultimately lending a skewed incentive to the rulings they hand down as they follow through on the promises they made to their contributors. This point is driven home in numerous examples in Oliver's most recent show, like this one, with a prospective judge declaring that it is "my privilege to sentence you to life in prison without parole." "Wait, it's your privilege?" Oliver follows up, "at best, it's your duty," he says, drawing an unsettling parallel to an overexcited proctologist.  

It could get even more messy.

There's a case before the Supreme Court that might allow judges to not only accept donations, but solicit them personally -- a practice that is banned in some states. One side is asking that the Supreme Court guarantee judicial candidates the right to ask for money as part of the First Amendment. The court heard the case last month.

Here are the facts. Florida lawyer Lanell Williams-Yulee, who, in 2009, while campaigning for a Hillsborough County trial court judgeship, violated her state judiciary’s personal solicitation ban by sending signed, mass-mailed letters asking for campaign contributions. After being reprimanded, the Florida Supreme Court dealt her a $1,860 fine for the personalized requests.

For her part, Williams-Yulee rejects the premise that personalized contribution requests are synonymous with judicial corruption. According to her briefs, she argued that Florida’s ban censors speech unlikely to result in judicial corruption, and also that the ban, as it stands, fails to prohibit candidates from raising money and thanking donors more or less directly through campaign committees.

Others in Florida, a state with a particularly rich history of judicial corruption, say that the ban is a necessary check on the power of direct donor-to-judge money, some of which could potentially come from the lawyers and corporate parties who stand before allegedly impartial judges in the courtroom. And if studies like those mentioned above hold any water––and indeed, they seem to––an increased flow of money in judicial elections could spell trouble for core American values like due process and a wholly independent judiciary.

This is already legal in some states.

In 30 of the 39 states that have judicial elections, there are similar bans in place prohibiting judicial candidates from personally asking for money. Supporters say that judges who personally solicit campaign monies threaten to co-opt the notion of an impartial justice system in which the public can place their trust.

Although bans in individual states have already been levied and are generally supported by bastions of the American legal system, such as the American Bar Association, last month's case could spur justices of the High Court to strike down personal-solicitation bans with the same nod to the First Amendment they made in the controversial Citizens United decision, where the Supreme Court said that corporations and unions had a protected right to spend as much money as they like on election campaigns.

“The rule of law,” said former chief justice of the Florida Supreme Court Harry Lee Anstead in the New York Times, “is premised on impartial judges and not on the image of a robed hand reaching out to take money from a contributor.”

Pending the US Supreme Court's decision, those robed hands––and the allegiances they hold––could become far more common. As Oliver explains, a citizen's faith in an independent judiciary is essential in a civilized society. But "if we're going to keep electing judges, we may have to alter our idea of what justice is."