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Electing Judges: Justice for Sale?

An alarming new study says spending on state Supreme Court elections has more than doubled in the past decade.

West Virginia judges rehear a case after photos surfaced showing a state Supreme Court Justice vacationing with a person involved in a pending case. Judicial elections in West Virginia have remained controversial, with one disputed election leading to a U.S. Supreme Court ruling. (AP)

Americans widely bemoan the influence of big money in their politics. Now, let’s look to the courts. 

A new study, out this week, says spending on state Supreme Court elections has exploded – more than doubled – in the last ten years. Twenty-two states elect top judges and sixteen more have retention elections. 

Smart money, big money, has figured out that can mean a lot of leverage. Former Supreme Court justice Sandra Day O’Connor is warning that a perception of “justice for sale” in this country threatens to undermine the rule of law. 

We look at money, justice and the courts.

-Tom Ashbrook

Guests:

Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign to keep state courts fair and impartial. His organization’s new, eye-opening report, “The New Politics of Judicial Elections, 2000-2009: Decade of Change,” was just released.

James Bopp, Jr., attorney with Bopp, Coleson and Bostrom, and the James Madison Center for Free Speech. He’s known as the legal mind behind the Citizens United case, in which the U.S. Supreme Court decided that corporations, unions and nonprofits can spend any amount to support or oppose the election of a candidate. He is currently serving as a lawyer for Wisconsin Supreme Court Justice Michael Gableman, who is defending his ads during the 2008 election in that state.

Penny White, professor of law at the University of Tennessee College of Law and a former Justice on Tennessee’s Supreme Court. She lectures widely on judicial independence and the need for reform.

Clifford Taylor, former Chief Justice of the Michigan Supreme Court. He is a currently an attorney and law professort at the Ave Maria School of Law.

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  • Joshua Hendrickson

    Not so ironically, the Supreme Court’s “Citizens United” decision is of course going to make buying justice that much easier.

    Not that I’m holding my breath waiting for this to happen, but what needs to happen is for the campaign and election process to be made entirely public–for all private money to be eliminated entirely. Citizens ought to be able to run for any office without requiring any kind of funding whatsoever. Declare your intentions, get your allotted chunk of commercial and debate time, and throw the names into a series of runoff elections. I’m sure critics will call this chaos; I call it democracy.

    Or better still–let’s pick our government officials not by election but by random selection.

    (The author of the Dune series, Frank Herbert, who used to cover Washington politics in the 60s, had this idea originally, or at least I first heard of it from his lips.)

    It would work the same way as jury duty. Pick names from a roll of registered voters, induct those folks into service, give them real responsibility, and when their single term is up enforce their non-participation in any future government. This could work well on a local level, although it would be difficult on a national level. Difficulties could be overcome, of course, if we really want to overcome them.

    I can imagine many objections to this. Randomly selected congressmen, senators, governors, judges, and even presidents might or might not be less corrupt or competent than the kind we have now. But the chances are good that they wouldn’t be seekers after power, who of course are the only kinds of people who become politicians, and who are the last people who should hold office.

  • informed American

    Everything is for sale in the U.S., including jurisprudence.

  • cory

    Informed American couldn’t be more correct.

    It is American free market capitalism. When you fuel your culture and society with greed, don’t be suprised when you reach a point where everything is for sale.

  • Michael

    NPR did a Great 3 part series on how Bail-bondsman keep inmates in jail at 4 to 5 times the cost to taxpayers to make more money for themselves even going so far to help write bad laws. It than goes on, on how they lobby and spend money on judges, that supersedes justice to increase their bottom line. It also talks about the difference on time served by people who have money and people who don’t.

    http://www.npr.org/templates/story/story.php?storyId=122725771

    recent study released on the amount of money being spent to do so

    http://www.npr.org/templates/story/story.php?storyId=129178835

  • Edward Cheadle

    Anybody who thinks that money contributed for campaigns does not influence the way Judges rule, the way congressmen vote, or the way a Governor or President makes policy is smoking crack.

  • Ellen DIbble

    Have we no shame? When it comes to buying “juftice” have we no shame? Where do we draw the line? Scandalously enough (in my opinion), we draw it at allowing an Islamic cultural center in lower Manhattan, which if built might help us all integrate a certain piece of America (understand it, recognize the shades, the meanings), rather than demonize it. No amount of money apparently can buy that land; might as well burn a cross on the sidewalk; the people notice and rise up. Keep the scapegoat out there. OMG.
    Buying our own version of justice is deep in our bones.
    Interesting about the bondsmen.
    The far, far less splashy ways (less flashy than encroaching on the WTC “near holy ground”) that certain judges can impact us keeps the issue foggy, easy to manipulate in election bids. Thanks for this.

  • MARK

    Once again. All part of the plan! Now they want to get all the big judges in their pockets! Total control! NWO!

  • CHRIS M

    So, let me get this straight:Its not ok to be a Liberal Activist Judge, but its Ok to be a Conservative Activist Judge?

  • A.J.

    A little “Off Point”, but related:

    I tried to find a lawyer to represent me in what could have been a suit against a particular company which is a member of a particular business “type” in my state. I called at least seven lawyers, and they all said, “no, I won’t take the case because I get a lot of business from that company, and I don’t want to sue them on your behalf, thus risking my law firm’s ability to continue getting business from the company you want to take action against in the future. They send a lot of business my way.”

    I asked if I had a potentially “good” case. They said, “yes.” I asked if I were not entitled to representation in court. They said, “you are, but I don’t have to give it to you.” So many (seven )law firms said this same thing, that I think it is parallel to this topic today: big money in the courts.

  • William McDermet

    Isn’t a conservative judicial activism just as likely as a liberal judicial activism? Most of us in Massachusetts are in FAVOR of same-sex marriage – the judiciary reflects our view of justice.

  • Gary Schott

    I’ve never agreed with the idea that political contributions are a form a free speech. It’s a system that clearly provides greater “free speech” to those with deep pockets.

  • yar

    The Pelican Brief is real. The murders are not the Judges as portrayed in the movie, they are the citizens and employees that are forced to live and work in hazardous conditions bought and paid for with business interest money.
    The more narrow ones interest the cheaper it is to buy your way to a favorable outcome. Those who want to build communities throughout our nation are always out gunned. We have to change the way we look at our political structure.
    We currently have a model where money and math work together to divide and conquer enough votes to win.
    With social media, I believe it is possible for a group of individuals to counter the statical odds and build a campaign by the people and for the people.
    I would start with a candidate who pledges not to take any contributions while in office.
    The window of social media is just opening, community activist have a limited opportunity now, soon the narrow interests will attempt to use this same window to consolidate their power as well.
    We need leadership now more than ever.
    I am calling out to the old hippies, the artist, the farmers the low wage workers, the immigrants, the outsiders, the evangelist, the oppressed and the unloved.
    We have to see past our differences and shake the bonds of slavery. These power brokers are using our labor to purchase more power for themselves.

  • Bill

    James Bopp JR’s argument that this is a means for Liberal’s to push their agenda is fundamentally wrong. The West Virginia case was a conservative judge being influenced by corporate money.

  • Ellen Dibble

    I think it was a Tennessee caller who said where’s the campaigning? For all this money floating around, nothing shows up except a name on the ballot.
    I think I have a clue. One candidate can blow the other out of the water before the ballot even materializes. The handwriting on the wall appears, and the judges know when to stop fighting.
    We vote for court clerks and the county district attorney, and we have a real race right now for DA, but I think I just saw the newspaper pretty much do a whitewash. One candidate, money or no money, is getting big pushes from big interests. The newspaper editors who still have some say, and who have the know-how to figure out which former prosecutors are giving $100 to which candidate; and secondly, one or two judges, former judges. That is not a lot of money weighing in (IMHO), but it shows how it works.

  • http://ibelieveinbutter.wordpress.com/ Soli

    Count me as another voice who gets annoyed whenever the term “activist judge” comes up. There are indeed plenty of judges of all political stripes with such an agenda, but somehow it’s only when they are “liberal” (which is still laughably conservative in the country) that such things get mentioned loudly.

  • Herb Gillis

    I get sick and tired of the “right” using the term, “activist judge”. What do they think these judges that are backed by huge campaign donations would do on cases they hear?

  • Gary Schott

    How can this guy claim that a judge is independent if he’s received 3 mil from the CEO of Massey Energy?

  • Ellen Dibble

    Bopp is talking the right/left agendas. Locally, it isn’t about gay marriage or bending the constitution.
    Where I live, judges are appointed, which means it is VERY political. If the governor is Republican, guess who gets appointed, in “bent” or “persuasion” or whatever. And electors are elected as well, the nominating committee, something like that.
    Even without electing judges in my state, there is a Republican/Democrat tug to their appointment.

  • John

    I don’t know why I bother to listen to shows on anything relating to the judicial branch. The same conservative talking points about activist judges . . .

  • Susan Schneir

    Liberal judicial activism…. as opossed to conservative capitalist activism.Free speech??

  • ren knopf

    The Supreme Court kicked this door wide open when they voted for corporate spending in Congress. That this has trickled down (love that phrase)to judicial elections should not be a surprise. Will the Judiciary stand-up against this spending? We’ll see. Money and power have Long made for interesting, tho’ not always proper, politics.
    Ren Knopf

  • Brandstad

    Tom,

    James Bopp is right, but so are you. On your case, you are correct that not all judges base their rulings on the constitution itself but rather a living changing rubber like document that can be flexed any way the wind blows. James was right that this should not be done. The constitution is a document that should be looked upon like it was written in stone and changes can be made to it but not by a court.

  • jemimah

    Complete impartiality/objectivity is, I think, a human impossibility. Maybe the judges of the future will be computers, programmed with the law, who can very logically decide each case. Then again…who’s making the computers?! It’s an interesting conversation, but I’m afraid the jury is going to be hung!

  • http://www.venturacommenter.org F. William Bracy

    At the risk of repeating myself, I’ll go ahead and say it again:

    “Freedom isn’t free,” as they like to say, “but it is for sale through a clearinghouse known as the United States Supreme Court.” [Fritzwilliam, 2010]

    This might be somewhat relevant to today’s topic.

  • Aida Neary

    Missing the point on judicial activism, I think. It’s a question of legality not a question of likes and dislikes. In the case of gay marriage, the judge decided that, based on the law, it is *illegal* to discriminate against gays and lesbians who want to get married. It doesn’t matter if people don’t like it and vote against it; it’s still illegal.

  • Greg

    I hope this edition will profile Richard Fine.

    And with regard to Citizens United, again I say it takes three branches to govern. That case reaffirmed the First Amendment, a welcome ruling at a time when certain radical elements are talking about how to curb free speech. If Congress wants to redefine corporate personhood they can do it. If they want to level the playing field and take money out of politics they can do it. Taking money out of politics is Congress’ job. I believe they won’t do it and corruption is going to accelerate until the people finally decide they’ve had enough.

  • Scott

    The bit about “liberal judicial activism” was absurd. Bopp’s tortured logic seems to be “If judges rule against us, we need the right to pay them not to.”

  • jim

    electing judges is a bad idea. Especially at the local level, the voters vote more for “selfish” reasons than for judicial objectivity. It’s the “old boy” or “old girl” network, voting for the person who will benefit “me” the most. it’s human nature. This mode of thinking is probably ok at the Congressional level, but at the judicial level, we need something better.

  • David

    The Iowa Supreme court consists of 7 justices. The ruling that the legislative ban on gay marriage was unconstitutional was a *unanimous* decision. It was NOT the result of a single “activist judge”. 3 of the 4 justices will be on the ballot for retention in November.

  • Jenny Schulz

    Mr. Bopp has shown his position for what it is: extremist. To call Sandra Day O’Connor an “activist judge” demonstrates what is at the heart of the push for judicial elections: getting rid of anyone who does not 100% agree with an ultra conservative, right-wing agenda.

  • Ryan

    I’m pretty sure that “over 100 years ago,” the Iowa men that wrote the constitution did not intend for women to vote, but they do now. Does that mean that we have betrayed the constitution? No, it means that society has developed and widened its perspective on equality. The same is true for gay marriage. No one group or person should influence the judicial system. Why don’t we make it the law that no politician or judge can ever know where their campaign money comes from. If a group or person wants to donate funds, then it would go to an election trust. That would keep special interests at bay. The penalty for divulging to the candidate that you contributed should then be steep. I think this would be a great solution to the problem that keeps both sides of the argument happy.

  • John

    James Madison Center for Free Speech — James Madison must be spinning in his grave.

  • Kris

    Tom, I hear you right now finally trying to challenge Mr. Bopp on his constant refrain about “judicial activists,” i.e., every court decision with which he disagrees is not based on the law, but on the personal opinions and beliefs of the biased, liberal judges. However, you’re wasting your breath. Mr. Bopp and his like-minded conservatives will never acknowledge that there are different interpretations of the law; as far as he is concerned, his interpretation is the only valid one, everything else is illegitimate, extra-judicial “personal opinion” All of this is particularly ironic coming from the attorney who prevailed in the Citizens United case, one of the most radical, activist decisions by the most radical, activist Supreme Court in our nation’s history. (There are a number of studies that support my “personal opinion” about the extreme activism of the Roberts Court.)

  • Jylene Livengood

    Please ask the participants to stop referring to judges “protecting gay marriage.” That’s not just a distortion of the actual legal record, it’s a lie. Just a lie. What actually has happened is that once homosexual behavior was decriminalized, it was legally NECESSARY to treat homosexuals equally because they were not acting in ways that violate laws and if they sought equal treatment under law, they were Constitutionally entitled to it. That’s not “protecting gay marriage.” That’s ruling that in the absence of any compelling reason otherwise,(and public bigotry is NOT a compelling reason!!!), all citizens must be treated equally under the law. No one, absolutely NO ONE, is forcing churches to change their behavior because that would violate the right of religion to practice according to its rules AS LONG AS THEY DO NOT EXCESSIVELY IMPOSE ON OTHERS AGAINST LAW. In the civil contract of marriage, gays are asking for equal access under the law. The conservative speaker distorts to the point of a lie when he says that this is “protecting gay marriage,” when what is actually happening is protecting citizen access to legal contract forms in the civil contract known as civil marriage. Absent crime (including incest) or some compelling social reason, the courts are saying citizens should be treated equally. Period. That INCLUDES straights and gays.

    As to finance, we already know that finance corrupts medical research and we don’t have a problem grasping that concept. There’s nothing about lawyers and judges that make them inhumanly resistant. I would rather see ALL campaign finance eliminated and only public funding allowed. I have a JD and remember in law school studying a lot of the funding cases. IT’s appalling. The say that money was equated to speech was a very sad day for our country because it turned public information into a commodity. Take a look at the recent Wall St. and housing debacles to see how stable and wholesome ANY commodity market is, and the Supreme Ct. under them helm of right wing activist judges has just rubber stamped plutocracy.

  • Ellen Dibble

    Besides corruption and incompetence, Bopp argues how to push back against sort of philosophical favoritism.
    It seems to me merit appointments by those deemed by the public qualified to appraise the actual careers of candidates is the way to go. An appointed judge who gets soft in the head and can’t ride-herd on the zealously advocating lawyers fighting it out in his or her courtroom, said judge can’t be unappointed (not very easily). So it could be an argument that enough money could be mounted to totally make a fool of said maybe aging or troubled judge and get someone “better” seated.
    Do we want judges to be subjected to that sort of indignity? So unelecting isn’t such a great idea.
    But I wouldn’t move to a state that elects judges. Too much room for electing incompetents, corrupt puppets.

  • Joseph Charles

    The Iowa Constitution doesn’t support gay marriage, because the people of Iowa didn’t support gay marriage in 1846?

    That argument is so vapid and insipidly lacking critical thinking, that it negates the person who states it. It doesn’t just put their opinions in question, it puts to questions their moral fiber.

    Have laws concerning minorities and women changed in the last 150 years? The Iowa interpretation hinges on the idea of equal rights and which groups should have equal rights. In that respect, the Iowa interpretation is pure elegance, as without equal rights we can assume the gay community must exist as second class citizens. By defining marriage as protected by the state’s constitution, this ruling has opened my eyes to the prejudice inflicted by the homophobic majority on the gay minority which only worsens without explicit legal protection by the state.

  • Noel

    Stories like remind me why I’m happy to have an appointed judiciary in Massachusetts and at the federal level.

    No, it doesn’t eliminate politics from the selection of judges, but at least the process doesn’t become a circus (most of the time anyway). At least this keeps most of the money out of the process.

    Merit-based judicial selection is absolutely the way to go.

  • Jenny

    I would note that the Iowa Supreme Court ruling on same-sex marriage was a 9-0 unanimous ruling, by both Democratic and Republican judical appointees.

    In Iowa, judges are appointed after a nominating commission accepts applications and forwards 2 names to the governor to choose from. It is an extremely fair system and we have some of the best judges in the nation. However, their retention is on the ballot. The Iowa State Bar Association surveys attorneys regarding their fairness, rulings, demeanor, etc., and if only voters would read those ratings, they could be informed when going to the voting booth. Bob Vanderplaats’ extremists efforts to oust quality judges won’t be effective in Iowa; people are too reasonably minded.

  • Neil

    Definition of “activist judge” – One that ruled against me.

    Mr. Bopp is typical of those who feel that any decision they disagree with is judicial activism. The people of Iowa who wrote their constitution may not have specifically written it to protect Gay Marriage, but the did write it to include protection for the values of equal protection under the law and non-discrimination that makes allowing Gay Marriage inevitable.

    It should come as no surprise after the “Citizens United” decision putting Congress up for sale that Judges would not be far behind.

    Now if I propose $100 to the cop that pulls me over for speeding to “Lobby” him that this is not the most efficient use of his time, I am just exercising my right to free speech, right??? Well, i suppose if I’m wrong, I can always just buy a judge.

  • Rachel

    Iowa is a very moderate state. We do not generally elect strongly liberal or strongly conservative representatives OR judges. The ruling overturning he gay marriage ban was NOT a reflection of liberal judges; the law demanded it. Constitutions must be living documents. They must be applied to current issues. This is not judicial activism!

  • Tom

    Nothing makes me roll my eyes faster than the phrases “judicial activist” and “money is free speech.” A judicial activist is someone who makes a decision you don’t particularly like.

    And money is not free speech: money is money and speech is speech. If you give someone a lot of money to get what they want, you’re going to have influence over them. That’s human nature and it’s ludicrous to think otherwise.

    Final point: The “will of the people” is not democracy; it is only a PART of democracy. If the will of the people prevented everyone with red hair from voting, there would be a judge there to say ‘you can’t do that, it’s unconstitutional.’ And that is a VERY important part of democracy!

  • Sandy

    Why is it that judges are on the bench to interpret and rule by established law, but Mr. Bopp claims all decisions he does not like are solely based on a judge’s personal opinions? The rulings wouldn’t hold up on appeal.

    Why, also, is his reaction to a ruling he does not like, which is based on established law, is to get rid of the judge instead of change the law? The judge didn’t make the law, he worked with it and upheld it. Yes, it is possible to interpret the law according to the case in question, however, the law is already there to interpret. We can’t have judges constantly looking over their shoulders about what donor they might offend. They should be following judicial procedure and the established law that it is their job to work with and rule on.

    Darned right citizens ought to be getting concerned about who “owns” their judges. If ordinary people are finally waking up to this problem, it is already huge.

  • Brandstad

    I will vote against retention of the 3 judges no matter what campaign is funded to throw them off the court.

  • Nick

    Disturbing topic: behold the corporate-special interest purcha$e + control of state justice.

  • Roger J

    Judicial activism will always be a problem. The US Supreme Court’s decision that corporate spending on elections deserves first amendment protection is the most egregious example during my lifetime (overturning both legal precedent and legislative will).
    The public has no business voting on judges. We elect our representatives. They are empowered to ratify judge appointments. An option providing for public recall needs to be present. That is sufficient protection of the will of the public. It offers the least threat of special interest control of the judiciary. Justice O’Connor is right. Public confidence in the judiciary is vital and severely threatened.
    NO GOOD can come from public election of judges. It should be stopped. Great harm is likely.
    The Iowa gay marriage decision was NOT judicial activism. It was a unanimous, carefully considered decision that our state constitution’s commitment to human rights and equal protection is inconsistent with prejudice against homosexuals and discriminatory restrictions on the right to marry. The current effort to recall these judges is nothing more than political opportunism and grandstanding. The public does not have the right (or the legal training) to overturn the constitution. If we compound that by letting special interests pour money into the process, democracy is doomed.

  • Morgan Kelly

    Mr. Bopp and the “anti-judicial activist” movement suffer a serious lack of understanding of the U.S. Constitution. Unlike the United States Code, it is not a 50-volume set of statutes comprising the ability to decide every conceivable set of circumstances. Instead, the U.S. Constitution is, for the most part, a set of principles that will always require interpretation. The same is true of our 50 state constitutions which are basically modeled upon the U.S. Constitution. Congratulations, though, to Mr. Bopp on his successful orchestration of the purchase of the Citizens United result.

  • Brandstad

    What law makes Gay marriage legal in Iowa?

    When the court overthrew the anti gay marriage law, they in effect put the previous law back in effect which did not allow gay marriage.

    The minority should not rule the majority!

  • Suzanne in Nashville

    Point of clarification: When Tom introduced Penny White he said she was turned out when she was not “reelected.” The Supreme Court in Tennessee is not elected, but appointed and then go through a yes/no retention vote. She lost her position on the court with a no vote to retain her, after she had been appointed.

    Thanks for covering this subject today, and for having Professor White on the show.

  • jeffe

    James Bopp, Jr. is nothing more than a extremist.
    Anytime the right uses the euphemism “activist judges” it means judges who don’t agree with their agenda.

    Corporations are not people, to me the Supreme Courts ruling on Citizens United was “judicial activism.”

  • John

    Can’t On Point get a better expert than one from Domino’s Pizza founder Tom Monaghan’s Ave Maria Law School: http://jonathanturley.org/2009/07/05/ave-maria-law-school-invoke-status-as-religious-institution-and-ecclesiastical-abstention-to-dismiss-law-professors-lawsuit/

  • jeffe

    What law makes Gay marriage legal in Iowa?

    When the court overthrew the anti gay marriage law, they in effect put the previous law back in effect which did not allow gay marriage.

    The minority should not rule the majority!
    Posted by Brandstad

    Really? Are you sure about that? What about Brown v. Board of Education which overturned the Plessy v. Ferguson decision of 1896 which permitted segregation.

    What about the right for women to vote and to have property right? (Nineteenth Amendment)

  • Ellen Dibble

    I think I heard Ashbrook citing that it’s encouraging to note corporations with a lot of money to deploy are using it to NEUTRALIZE the campaign-monies that attempt to move for electing judges who are NOT impartial and fair-minded. If the Dred Scott Supreme Court had Hewlett Packard and Google pitching money against the entrenched slave-owning interests, would we have been spared the Civil War?
    Still it’s kind of a roll of the dice. Most corporations would see a trusted and even-handed judiciary as their best bet. Commerce depends on a trusted judiciary. Do you want to do business where the mafia runs the show? Maybe, maybe not.
    If money is campaigning AGAINST insulation of the judiciary, it’s campaigning against Justice per se, in favor of favoritism, in favor of boughten decisions.

  • AJ North

    Bopp seems to have a rather limited vocabulary (for an attorney); his favorite – and overused – pejorative being “liberal.”

    “Madison Center for Free Speech?” Hardly; he and his fellow travelers are for the speech that can be purchased – and the more money, the better, as fear born of lies always generates the big bucks (and voter turn-out). This is anathema to the very foundation of this nation. Rather, speech – like politics – should be a level playing field – not a financial arrangement. For him, and those like him, to cloak themselves in the American flag is both grotesque and obscene.

    Let’s take the issue of same-sex marriage. True; at present, every state that has put this to a popular vote has voted against it, the most recent being California. Your camp just loves to extol the “vote of the people in a fair election;” well, sir, in fact there was NOTHING “fair” about California’s Prop. 8 ballot initiative – it was a tissue of outright and gross LIES paid for with huge amounts of money coming in from out-of-state (from, among other groups, the Mormon Church) . The reason for that is obvious to the most casual observer: you and your fellow reactionaries can not win a fair contest. Therefore, you hammer away to instill fear in people – and that takes money, lots of money.

    (Incidentally, were California to vote on the issue today, it would become the first state to vote in favor of marriage equality – by at least the same majority that voted for the infamous Prop. 8 – and likely larger, not that that really matters (that is, if the courts do not dispense the civil rights guaranteed under our Constitution first). As an aside, it is astonishing that a state can require a super-majority to pass a tax increase, but a mere majority to change its constitution.)

    And to the caller from Iowa, awfully sorry, but basic rights are NOT put to a vote – not in America, anyway (not yet). Try informing yourself of some history.

    Until forty-three years ago, it was illegal for interracial couples to marry in most states; then came Loving v. Virginia, 388 U.S. 1 (1967). It is of interest to note that in 2007, Mildred Loving, one of the plaintiffs, equated the struggle to be able to marry her husband to this very issue, saying, “I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.” (This also answers Bobb’s absurd claim that the legislature [or by inference the voters] are absolute; sorry, sir – our government has three co-equal branches, with the courts the final arbiters – Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); you may recall it from law school.)

    Yup, another one of those inconvenient facts – like global climate change (and the Earth’s age being 4.54 BILLION years old [+/- 1%]).

    Government “of the people, by the people, for the people,” of which Lincoln so eloquently spoke has indeed perished, and been replaced by government of, by and for those with the money with which to purchase it (like corporations and PACs).

  • Jim in Omaha

    A study of the US Supreme Court done in 2005 demonstrably proved that the most activist justices, measured by how many times they voted to overturn legislative acts, were the most “conservative” members of that court. Clearly, those judges who support the “right wing agenda” are more likely to try to use their position to implement that agenda than those who favor the “liberal agenda”.

    With regard to judicial elections without obvious campaigning, many states are like Nebraska in which judges are initially appointed by the governor (a clearly partisan political decision) then stand for retention every 6 years or so. Unless there is an organized attempt to vote that judge out, there is no campaign by the judge or others to support retention. Our election results show that almost every judge not the subject of such an effort gets retained by an almost identical percentage of voters. I conclude that some people vote to retain all judges and others vote to oust all of them.

  • Sam

    I feel like James Bopp was saying two contradictory things: on the one hand, he wants judges to be impartial; on the other hand, he clearly wants to elect judges that will decide cases in specific ways (e.g., against gay marriage). Like many people, I don’t think he really cares what the mechanism or principle is, as long it produces the outcome he wants. That’s the heart of the problem: these big-money elections are about specific issues, not about judicial principles.

    I find myself with the Libertarians on this one. First, the Constitution is a fundamentally liberal document: we only disallow things when absolutely necessary. Second, a critical role of judges is to prevent tyranny of the masses — they must strike down Unconstitutional laws, regardless of popular support. If judges are beholden to voters, then they cannot effectively play this vital role.

    What we need is a system of accountability for judges that is based on the quality of their work (admittedly, a nebulous concept).

  • ThresherK

    +1 for those who recognize the conservative snow job about “liberal judicial activism” when they hear it. And this show had more of it than is needed.

    I heard our host lash back at some caller taking exception to gay marriage in Iowa because it wasn’t mentioned in the 19th century. High marks for Tom!

    And Branstad’s love for the tyranny of the majority is not a surprise.

  • Jim T

    Greg wrote:

    “If Congress wants to redefine corporate personhood they can do it.”

    Greg, corporations do not exist in the Constitution. They are creations of the legislature, and it was the legislature which enacted an election law (the McCain–Feingold Act) to restrict the ability of corporations to make campaign contributions. In the Citizens United case, therefore, the Supreme Court ruled that the legislature could not limit the rights of their own creation. Talk about judicial activism!

  • Ryno

    Republicans: Quid pro quo is covered under the first amendment.

  • Jeff ODonnell

    Evidently the attorney that argued against”Judicial activism” on your recent program was wanting to turn the clock back on several things. Gee, once we’ve bought our way and ended this gay marriage nonsense and killed off reproductive choice, maybe we should take a look at the civil rights legislation that we refuse to take seriously-not talking about the more recent things but the bigger causes going back over 100 years- like women’s suffrage, the 13th amendment and while we’re at it let’s make some clarification to protect our corporate interests in the the 1st and 4th amendment……I mean a living wage is something that can be defines at the company store, and we don’t think the working class need bother with education…… Not once did that stuffed shirt address anything constitutional–and while we are at it when is the media going to hold the “Strict constructionist” feet to the fire and show where the founding fathers felt that corporations were holders of “God given” rights?
    Sickening. This behaviour is absolutely sickening.

  • Steven

    Very dangerous to elect judges. Sometimes it is suggested by lawyers that you don’t go to trial for popular offenses during election season. Due to impartiality and stricter sentences just to bolster their campaigns.

  • Kevin

    “One ad, so what?”

    Great line from the guest calling in today. Perhaps he will be able to provide some concrete examples of Sandra Day O’Connors alleged judicial activism from the bench of the Supreme Court.

    “Judicial Activism/Restraint” are terms relative to the speaker/audience. The in studio guest came across as very fact based, and grounded. The phone in guest was far to biased to be considered relevant to the subject matter in this segment. His argumentative nature is more suited to Fox than NPR.

  • JP

    THIS ALL SUITS ONE GROUP OF PEOPLE PARTICULARLY WELL:

    THE EXTREMELY WEALTHY.

    There’s a good reason why the very rich just keep getting richer while the rest of us stagnate or fall into poverty: the rules just keep getting skewed more and more to benefit the wealthy.

    As the wealthy elite buy more influence, more legislation and jurisprudence benefits them, then they have even more money to buy more influence, on and on, etc, etc…

    … and over time they’re getting better and better at gaming the system by paying the minions who know how to serve their interests and none other.

    We’re all doomed so long as we allow capitalism and corporate greed be the single God we worship as a society, while the wealthy use our stupidity and apathy against us.

  • http://OnPoint Richard Haglund

    Should we not observe that judicial activism is not the same as “liberal political philosophy”? After all, the most conservative justices on the U. S. Supreme Court vote to overturn acts of Congress (the will of the people, yes?) as the most liberal justices. The failure to understand this simple fact causes a lot of the impediments to a rational discussion of judicial independence.

  • Greg

    Jim-

    True, corporations don’t exist in the Constitution.

    But the U.S. Code, as written by the House, states in Title 1, Article 1, Section 1:

    the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals

    I’m no legal scholar but to me this says that a corporation is equivalent to a person. Is that not the basis on which a corporation has unalienable First Amendment rights?

  • tony B

    James Bopp Jr. would’ve supported states rights in 1860… if he had his way back then, we’d still have slave states now…

  • Jim T

    Greg,

    I am not a legal scholar either, but it seems to me that a corporation is not equivalent to a person in all respects. A corporation cannot vote in an election, cannot be called to serve on a jury, and doesn’t have to be 21 years old to purchase alcohol. To me, that suggests limits on the “personhood” of a corporation. Who better (in my opinion) to set those limits than Congress, since it was the legislature that created corporations in the first place. To suggest otherwise is to say that it is possible for Congress to enact a law that it does not have the power to amend.

  • Alex

    “James Bopp Jr. would’ve supported states rights in 1860… if he had his way back then, we’d still have slave states now…”

    Hey, Lincoln supported states rights, too, except for the right to secede. He was ready to guaranty slavery by a Constitutional Amendment to keep the South in the Union. Ironically, if it wasn’t for the Southern intransigence, we would have had a very different 13th Amendment right now.

  • Greg

    Jim,

    I agree with you that the Citizens United decision comes from an activist court, perhaps not the one intended when the justices were selected. My heart is warmed by the disdain they’ve shown for our corrupt political process.

    The decision doesn’t prevent Congress from reforming campaign finance law but they have to do it for real, not with a wink and a nod to the corporate interests that dominate our system.

  • Joshua Hendrickson

    In the question of the wishes of the majority vs those of the minority, my standard would be to ask: which position is in favor of wider social freedom for all?

    For instance, if a majority does not favor gay marriage, then the minority should win that argument, since the freedom of the minority doesn’t impede the freedom of the majority.

    Also, if a group of bigots does not favor the building of a mosque near Ground Zero, whether those bigots are in the minority or the majority should not matter; the decision should favor the building of the mosque.

  • Joshua Hendrickson

    Also, should a minority–the wealthy–seek the favor of a system that privileges wealth as influence (as in the Citizens United case), then the majority, which cannot take advantage of this system and therefore is impeded in their own freedom and ability to acheive influence, should win the case.

  • david

    Judge overturns Missouri’s restrictions against protest at fallen soldiers’s funerals. They tried to set up buffer zones away from churches and gravesites to stop Westboro group from protesting. Judge ruled it was unconstitutional to deny group right to protest, even at funerals?
    Another judge rules that Abortion clinics can set up buffer zones around their sites to prevent groups from protesting. Groups can not even shout at people entering site.
    Sounds like a double standard or activist judges or what????

  • James Buzard

    I have just been listening to your “On Point” program on judicial appointments and elections and fundraising. Normally I am a big supporter of NPR’s principled efforts to include perspectives from conservatives, so as to offer listeners a balanced account of the issues. On this occasion, however, you have offered valuable air time to a conservative hack who has little to offer other than his rehearsed talking points. I am disappointed that you have allowed a formulaic gesture toward inclusion to override your editorial principles. It’s a waste of time to include people who invoke the idea of “judicial activism” as if it were an objectively agreed-upon fact rather than a rhetorical ploy. And why did no one question this so-called authority on why we don’t necessarily think that adhering to the principles reached 100 years ago might be a reliable guide to judicial decisions nowadays? Shame on you. I hold you to a higher standard.

  • BrettG

    Who sponsored this hour, GOP Tea Parties, Inc.??

    The lack of close hard questioning of ATTY Bopp’s bizarre description of “judicial activism” is disgusting.

    That you allowed him on the show without a forceful rebuttal force shames Your Show & WBUR.

    Allowing false equivalence and oft-repeated taking points is exactly the opposite of what WBUR/NPR/PRI ,etc. should be doing.

    A disappointing, empty hour on a subject crucial to the continuation of our Constitutional government instead of oligarchical tyranny.

    We must remove the “corporate person” from all of our Federal, State & City/County laws and Constitutions, city charters, etc.

  • Kris

    Thank goodness for the FANTASTIC COMMENT from one of the last callers (maybe THE last caller?). I think his name was PHILIP. He basically said that the courts are supposed to protect the rights of people (individuals & minorities) whose rights are being threatened or curtailed by a law that the majority voted for. (He said it far better than that!).

    All the talk against “activist judges” is just preying on the ignorance of people who, somehow or other, got a bad education (maybe thanks to misinformation planted by the small, select, Conservative group in Texas who determine what goes into our textbooks?, but definitely thanks to the misinformation spouted by certain non-news “news” outlets).

    Thank you, Philip. You spoke an important truth and did so with such clarity that the moral imperative of the position you stated the courts are intended to have shown thru in spite of the wicked misinformation (Bopp’s verbiage!) it was surrounded by! Thank you! Truly!

  • Jane Doe

    I have experienced judges serving on Bar Association boards and committees, which has (in my experience) shown to be as much of a problem. Other people on the board or committee said that they wouldn’t go against the judges’ votes because their livilihood was based on appearing before those judges. I don’t think judges should sit on Bar Assocition boards. Even serving on community boards can pose the same problem with judges serving. I know a judge who steered foundation funds to lead campaigner-run organizations. The judge, president of the board of the organization, gave foundation money to a group that didn’t even fall under the foundation’s mission activities. The thank you note from the organization said “We are looking forward to continuing to support you in your re-election campaign.”

  • jeffe

    You know we have reached a sad day in this country when NPR lets a hack like James Bopp slander the good name of former Supreme Court justice Sandra Day O’Connor.
    This man has no shame. She’s a republican as well.
    It’s amazing the level of demagoguery that this country is now heading for. NPR you have just added to this by letting this nasty little man air his trite warped view points.

  • Joerg

    There was a point raised, that people would be able to hear all arguments if money is thrown in.

    I have to say, if i see any of the adds in tv i wonder how anyone can make an informed decision without knowing any fact at all.
    TV is not really informative to the grade of journalistic neutrality.
    Always i have to watch BBC or PBS to see a real unbiased report on any matter. Sadly nothing i found for local news besides newspapers.

    So, how can you make an informed decision if you relay on tv or even internet.

    I think, back to the point, that money should not play a role at all in judge elections. These are non-political positions.

    One thing came clear that for a man like James Bopp, there is always from the other side the liberal agenda.
    As that the right does not have an agenda.
    All parties have an agenda and its their right to have one.
    In the end, since entities are equal to the people in free speech, there is not much hope in the future for the people.

  • Joshua Hendrickson

    david writes:

    “Judge overturns Missouri’s restrictions against protest at fallen soldiers’s funerals. They tried to set up buffer zones away from churches and gravesites to stop Westboro group from protesting. Judge ruled it was unconstitutional to deny group right to protest, even at funerals?
    Another judge rules that Abortion clinics can set up buffer zones around their sites to prevent groups from protesting. Groups can not even shout at people entering site.
    Sounds like a double standard or activist judges or what????”

    This intrigued me, so I looked it up. The Westboro group is anti-gay, and the abortion protesters are anti-choice. Both are right wing groups. They are being treated one way by one judge and another way by the other judge. So how is this a double standard, if both groups are on the same side of the political fence? Double standards apply different conclusions for different groups. How is this an example of liberal judicial activism? Is only one meant to be an example, in David’s view? Or both, as he implies by the use of the plural? It seems a confused observation at best.

  • Ryan A.

    First, I admit my prejudice is for competent appointment of judges through commissions and legislatures (which gives derived political control over the process). The mechanism for ‘checking’ justices should be, and in many cases is, impeachment. A justice who decides cases “so out of line with mainstream thought” and “without regard to the law” could well be removed by the POLITICAL process of impeachment (and conviction). Impeachment need not be based on particular criminal or civil offenses; rather, it was meant to be a political means of removal.

    As an attorney, I have seen more than a few cases in appellate courts (incl. state and US supreme courts) where it is easy to attack the judicial rationale as ‘activist’ when it falls outside the scope of the political ideology espoused by the critic. Unfortunately, ‘judicial activism’ has become an empty, easily-tossed-around term for unfavorable rulings–with the benefit of avoiding the much more difficult process of attacking the underlying legal analysis supporting the ruling.

    However, as I stated above, there are mechanisms that would allow sufficient checks on judicial power by the other branches. Direct election, coupled with the corrupting power (and distraction) of campaign funding, should absolutely not be allowed in the selection or removal of justices. The very purpose of the judiciary (under ALL state and federal constitutions) is to uphold the law–the most fundamental of which is a constitution, superseding any legislation passed in the normal course of the legislative process. Therefore, if a right exists in the law underpinning (and superseding) a law passed by the democratic body politic, a court is duty-bound to give precedence to the rights granted individuals and those groups not in the majority. That means, if the judicial analysis concludes that the majoritarian law conflicts or violates constitutional law, the court must strike it down. Otherwise, expect mob rule–and hope that you are not in the adversely affected minority.

    Without a robust and INdependent judiciary, such protection from encroachment on guaranteed rights under the law (incl. the constitution(s)) would ultimately shatter our rule-of-law, orderly, and predictable civil society. Direct election, and in particular, the injection of monied interests into this process, would strip the judiciary of sufficient independence to feel free to issue unpopular decisions though based soundly on thorough legal analyses.

    The judiciary thus becomes yet another majoritarian (or worse, oligarchic) body, subject to the people (or monied interests), not the law.

  • Kathleen S.

    In terms of the system of checks and balances, the role of the court system is to ensure that the majority does not deny the rights of the minority. This means at times it is explicitly the role of the court system to make decisions that go against popular opinion.

    There is a history in this country of the courts doing just that. It was the courts in Massachusetts that ended slavery, not the people in a popular vote. I don’t believe that the writers of the Massachusetts constitution intended to end slavery, but that is how the courts interpreted the constitution that they wrote. Does this mean that the court was “activist” and slavery should have remained?

  • james noble

    A few nuance. First contributions given are consider’ financial transactions and are therefore an intrinsic part of the corporate republic we have evolved into. Next we have already been, As a government, assimilated into the corporate empire. Given This it seems to me we should be informed a whole lot better. Except we’ve Just been informed that the whole economy is built on corporate law not constitutional law. This includes the corporate media. who lied to us right up to when we toppled the world economy. I think we should thank our lucky stars. Such as President Obama and there’50 others I can think of off hand. Oh yes please do Have your Islamic temple I like the proximity to the Morman one. We need to improve world relations not stifle them. Thank you.

  • Bill Jackson

    Justice Taylor, a guest of the show, received, over the course of several elections, considerable (read millions) donations from Business Groups, Insurance Companies, and physician groups.

    Now, why would Blue Cross Blue Shield of Michigan give to a judge’s campaign? Shortly after the 2000 election, in which insurance gave lots, Justice Taylor penned a decision forcing a higher standard for Plaintiffs in order to pursue medical malpractice complaints. In the Scarsella case, which has its own behind-the-scenes procedural anomalies, Taylor institutionalized (read “interpreted into precedent”) a procedural set of steps only sketched out by the legislature. In short, Taylor repaid the insurance industry by limiting the number of cases of med mal–that is, by setting the entrance fee to the court just a little higher.

    This is one small example of how campaign monies are repaid.

  • JP

    This idiot Bopp is basically saying that conservatives should be able to buy judges who represent their positions to the detriment of objective jurisprudence.

    What a tea-bagger moron!

  • JP Shipley

    I’m really glad that everyone seems to agree that James Bopp was a hack. I’m really disappointed in On Point’s vetting process in this instance. I went into this episode with an open mind, ready to consider the merits of campaign donations in judicial elections fairly, but the instant Mr. Bopp started spewing his rehearsed talking points about “liberal judicial activism” my mind was shut to his arguments.

  • http://www.youtube.com/watch?v=abXrRf4Osjk&feature=player_embedded Roger

    Here is a thoughtful video of former Iowa Supreme Court Justice Mark McCormick giving a press conference on judicial independence and the current effort to unseat the 3 Iowa justices up for regular retention votes.

  • Bush’s fault

    Given Mr Bopp’s disfavor on this blatantly liberal forum, one can only conclude that his views must bear merit.

  • david

    Joshua,
    You missed the point, My point was how can one judge allow the setting up of a buffer zone and restrict freedom of speech and then another judge strike down a buffer zone saying it violated freedom of speech.
    Or in PASADENA, Calif. — A federal appeals court panel in California says people have a right to lie about receiving military medals.

  • Mark

    Mr. Bopp, you’re obviously one of those mean and nasty conservatives. Sorry, but the rights of the minority are NOT up for election. You call it “judicial activism,” but we’ll see what you say when the SCOTUS rules against same sex couples from the right to civil unions/marriage.

    Tom, I hope you invite Mr. Bopp back when this occurs so you can remind him of his stance on judicial activism.

    Pure hypocrisy.

  • BigHairEddie

    Kudos to Tom for not rolling over and letting the Bopper just spout his shrill point of view. Great job Tom.

    And the great things is you hold your own to both sides.

    Folks, we’re fortunate to have this show.

  • Mark

    Ok, regarding Chas’s comment on civil rights legislation and court rulings following the civil war, the gentleman cited Republicans as kicking off civil rights, yes, that correct, but they were progressives/liberals. It’s important to note that conservatives have tried since then to prevent civil rights decisions and legislation. The name of the party doesn’t matter.

    Case in point, same sex civil union/marriage.

  • joshua

    u cant have freedom and democracy or justice in a capitalist system–it is impossible and foolish to believe so.

  • http://mfraioli1@cox.net Matt Fraioli

    The host does not call out Mr Bopp when he recites the tired right wing mantra that judges impose their personal agenda. I am sick and tired this comment whenever a conservative doesn’t like the result of a judge’s ruling. It is intellectually dishonest and should be ruled out of bounds by the moderator of the discussion. Do your job Tom

  • Mike

    I found it interesting that Mr. Bopp was concerned about activistic judges espousing particular philosophies and the need for judicial elections as a tool to hold judges accountable. Mr. Bopp seems to premise his notion of “activism” on the idea that judges should defer to elected representatives and act with restraint in either (a) overturning laws, or (b) creating new law. But his concern appears to run in only one direction; restraining judges that might rule in a manner that isn’t conservative enough for him. His concern about “judicial activism” is ironic given that the “conservative” majority on the US Supreme Court has repeatedly overturned both state and federal law governing money and speech, laws adopted by elected representatives of the people. Apparently judicial deference should be paid only on issues that Mr. Bopp agrees with and activism is perfectly acceptable when in comes to judicial participation in issues he doesn’t agree with. In the end, the Citizens United case will not raise the level of reasoned debate; it will only cheapen the quality of that debate to soundbites while raising the costs of participation.

    Having worked in several state judiciaries I can state that virtually everyone inside is concerned with the quality of justice and the quantity that appears for sale. Mr. Bopp forgets Alexander Hamilton’s observation that the only thing the judiciary has going for it is the soundness of its judgment. While the vast majority of the judges I know work hard to remain neutral and dispassionate, the influence of money on judicial elections can’t but impact the judicial process. Mr. Bopp seems to think this is OK; until of course that same accountability that he seeks runs counter to his own views of the law. And there lies the apex of the contradiction in his position: Mr. Bopp has a view of the law and courts that he believes is absolutely correct all the while complaining about illegitimacy of views of others that don’t comport with his. As much as he complains about the influence of the “liberals”, his own conduct is simply the same in reverse. He wants to influence the very judiciary he complains is being influenced. If this weren’t the case, he would decry the Citizens United case for what will be its undoubted, though subtle, warping of the judicial selection process. Like many on the extreme left and the extreme right, what is good for the goose is never good for the gander, and the ability to appreciate and accommodate other’s views is sorely lacking if it exists at all.

  • http://law.harvard.edu Augustus

    RE: Judicial Activism and Proposition 8

    Quick point regarding questions on “judicial activism” and the recent decisions overturning Proposition 8.

    (1) The Supreme Court applies STRICT SCRUTINY to any state law which infringes on the FUNDAMENTAL RIGHTS of citizens under the 14th Amendment.

    (2) Marriage is a FUNDAMENTAL RIGHT. The Supreme Court has interpreted marriage as a FUNDAMENTAL RIGHT no fewer than ten (10) instances since the late 1800′s.

    (3) A state law, like California’s Proposition 8, fails to withstand STRICT SCRUTINY because it denies a FUNDAMENTAL RIGHT (marriage) to citizens.

    (4) Other state laws infringing on a citizen’s right to marry have been overturned UNANIMOUSLY by the Supreme Court. The seminal case is the Supreme Court invalidating a Virginia law prohibiting interracial marriage (Loving v. Virginia).

    Therefore, the Supreme Court has the Constitutional responsibility to invalidate state law (popular or otherwise) which interfere with an American citizen’s fundamental rights under the Constitution. In this particular case, an invalidation of a law unconstitutionally interfering with an American citizen’s fundamental right of marriage.

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