For more information on this topic, check out "Grisham Novel Imitates Real Life: Could it Happen in Arizona" by Ted Schmidt, which can be found in our most recent newsletter.
Last week the Supreme Court ruled, in a 5-4 decision, that judges are prohibited from hearing cases that involve an interested party to the lawsuit that made large contributions to the judge's election campaign. The case before the Supreme Court involved a West Virginian judge who remained involved in a lawsuit filed against Massey Energy Co., the judge's most generous election supporter. The judge helped overturn an $82.7 million dollar verdict against Massey Energy Co. The Supreme Court ruled that judges who remained involved in these situations deprive the other side of the constitutional right to a fair hearing.
This decision will have a huge impact for several reasons. 39 states currently select their judges through partisan elections, and candidates for the highest state courts have raised more than $168 million in judicial election campaigns since 2000. On top of the large amounts of money involved in these campaigns, judicial elections also create negative game-playing and bench-swapping. For example, in the case heard before the Supreme Court, Massey Energy Co. donated $3 million to a judicial campaign so that they could defeat an incumbent judge and replace that judge with someone who would more favorably support its cause. It is not a coincidence that their substantial efforts in replacing the incumbent judge during re-election also occurred before its case was to be heard on appeal.
Those against partisan judicial elections argue that the elections interfere with the independence and neutrality of the judicial branch because they put biased pressure on judges who have been given lots of money from certain parties and who fear that the wrong ruling will prevent them from re-election. The Supreme Court's ruling last week will either force such bias out of the courtroom or force states that use partisan judicial elections to rethink their method of how judges are selected.
Fortunately, Arizona does not currently use judicial elections, but instead uses a method known as merit selection for picking judges. Under this method, a carefully selected commission appointed by the state senate and made up of Democrats, Republicans, lawyers, judges and lay people review applicants for the court, nominate three candidates (at least one from each party) and submit these names to the governor for selection. Once selected, judges are subject to a vote by the people; the vote does not determine whether one judge should be replaced by another judge, but rather whether the judge should be allowed to retain the bench based on his or her performance.
There have been current attempts by the Arizona Legislature to overthrow merit selection in favor of partisan judicial elections. Based on the negativity that elections have on disrupting the independence and neutrality of the judicial branch, such a change in how judges are selected in Arizona would be very unwise.