National Law Journal: A Foolhardy Proposal: Electing Our Justices

Op-Ed by Bert Brandenburg, The National Law Journal

Ted Cruz's idea to put the high court's jurists on a retention ballot is fraught with problems.

The 2016 election has more than 14 months to go, but the early scramble for attention has already produced a monumentally silly proposal. Sen. Ted Cruz, R-Texas, furious at U.S. Supreme Court decisions on health care and marriage, is pushing for a constitutional amendment to make Supreme Court justices stand for retention elections, in which they would be forced to campaign to stay in office.

If sending Antonin Scalia or Ruth Bader Ginsburg out on the campaign trail sounds like a Saturday Night Live skit, it's because it would turn more than 225 years of American constitutional culture on its head. Our founders — who knew something about popular sovereignty — consciously avoided electing judges because they wanted courts' rulings to be based on the law and the constitution, not political pressure. Imagine our justices, and the cases they decide, trapped in our 21st century political circus. Imagine them ruling with one eye on whether a Super PAC boss might approve. Imagine the nasty, misleading ads distorting their records. Imagine the justices, caught in the middle, facing daily pressure to write campaign speeches or shade their thinking or make subtle promises if they want to keep their job.

Who would pay for these campaigns? Lawyers who appear before the court? Special interests shopping for ­likeminded justices on hot-button issues like tort liability, abortion rights and affirmative action? Would anonymous donors and "dark money" groups crop up to keep or fire justices?

These are not wild-eyed hypotheticals. In states with judicial elections, ­judges are increasingly besieged by a flood of money and special interest pressure. At least $228 million has poured into judicial campaigns in the past decade. The Citizens United decision, which lifted restrictions on independent campaign spending by corporations and unions, quickened the pace.

"Judicial elections have become just as overwhelmed by money as all the other contests in American politics," former Alabama Chief Justice Sue Bell Cobb said recently. Consider Tennessee, where last year three Supreme Court justices up for retention faced ads stating that they supported Obamacare (in fact, they'd not heard any cases involving the Affordable Care Act). The justices responded by raising more than $1.1 million, much of it from parties who may appear before them. In Illinois, a state Supreme Court election turned into a $3.3 million ­showdown between plaintiffs lawyers and Big Tobacco.

The entire article can be viewed here.

Op-Ed: A Foolhardy Proposal: Electing Our Justices