New York Times: “Judges Who Are Elected Like Politicians Tend to Act Like Them”

That’s the headline in this NYT article by Adam Liptak. My research article, “Open for Business: Illinois Courts and Partisan Elections” has similar conclusions based on Illinois experiences. Quoting from the NYT, then my research:

“WASHINGTON — “Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice John G. Roberts Jr. wrote last year in a case from Florida that took a small step toward insulating elected judges from political pressure.

Judges in 39 states face elections, and it is only natural that they might find it hard to take an unpopular position. But Chief Justice Roberts wrote that both appointed and elected judges must ignore public sentiment.

“Politicians are expected to be appropriately responsive to the preferences of their supporters,” the chief justice wrote. “A judge instead must ‘observe the utmost fairness,’ striving to be ‘perfectly and completely independent.’”

He was quoting Chief Justice John Marshall, and it is a fine aspiration. But any number of studies have found that elections can affect judicial behavior.

One released last week, for instance, found that elected judges are less likely to support gay rights than are appointed ones. The effect was most pronounced in cases decided by judges who ran in partisan elections.

Summary of my research article: Illinois suffers from the most partisan system in the nation for electing judges— a system that erodes the independence of courts from politics. I demonstrate that politics, not merit, is the crux of selection for Illinois judges. At every court level, judges must declare as a Democrat or Republican when they first run for office. This allows special interest groups, businesses, labor unions, trial lawyers, and political parties to donate heavily to judicial candidates. As a result, judicial elections in Illinois have become giant magnets for out-of-state campaign donations. I show that some partisan elections mimic influence peddling in legislative elections; and I explain how four major Illinois supreme court rulings bear earmarks of campaign influence from big donors. These problems are magnified by the state’s outdated code of judicial conduct that fails to address the growing influence of money in judicial campaigns. Illinois should follow other states by adopting more stringent campaign regulations, patterned after the revised ABA Model Code, for judges and judicial candidates. More broadly, Illinois should abolish partisan elections and replace them with a non-partisan commission of non-lawyer citizens, lawyers, and judges to select and retain judges on merit.