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Should there be judicial performance evaluation for federal judges? Campaign finance limits for state judges?

Most states have commissions which evaluate the performance of state judges. Would it be a good idea to institute similar performance review of federal judges? For judicial elections, are campaign contribution/spending ceilings constitutional? What about bans on candidates personally soliciting contributions? There are the topics of a symposium issue of the Denver University law review, including a foreword by Justice O'Connor. Comments on these topics are very welcome--but only after the commenter has read at least one of the articles in the symposium.

ARCraig (mail):
Campaign finance restrictions are all unconstitutional, but I don't know why the current jurisprudence to the contrary would apply any differently to judicial elections.
11.21.2008 7:08pm
Ex-Fed (mail) (www):
I think the suggestions about the helpful impact of performance evaluations for federal judges are overly optimistic. Sure, in quite rare cases they may influence a decision of whether to elevate a magistrate judge or district court judge. But I'm not sure they are useful beyond that. I don't think they will inspire greater confidence in the public; the result may be the exact opposite. And since the feds have no one-free-strike rule like California Civ. Pro. 170.6, knowing that the federal judge who has been assigned to your case is likely to hose you is of limited utility, except perhaps in encouraging your client to settle. Moreover, in my experience the "lifetime appointment, bitches!" mentality is fairly strong and proud in the federal judicial community. Add to that an extremely limited willingness of judicial panels to discipline judges (witness the Ninth Circuit's recent experience), and I don't think a slew of bad ratings is going to inspire much black-robed introspection and personal development. No matter how many times I write a review saying "Judge Real: v. shouty", or how many times I tell the story about my first federal court appearance (in which judge Keller berated me, a first-week rookie federal prosecutor appearing for a status conference in a bank robbery case, about why the U.S. Attorney's office wasn't prosecuting obscenity any more), I don't think it will have much impact. IN fact, it will probably just make me more cynical and bitter, if such a thing is possible.
11.21.2008 7:38pm
Fub:
I read the O'Connor article, Judicial Accountability Must Safeguard, Not Threaten, Judicial Independence: An Introduction. My Acrobat reader could not handle the Bopp and Neely article for some reason.
Most states have commissions which evaluate the performance of state judges. Would it be a good idea to institute similar performance review of federal judges?
A federal "Judicial Commission" would likely be subject to about the same levels of abuse as the state bodies that you mention. Whether this possibility is sufficient to make such a body a bad idea is an open question, but I haven't seen too many complaints about California's in the news.
For judicial elections, are campaign contribution/spending ceilings constitutional? What about bans on candidates personally soliciting contributions?
For campaign contribution limitations, rather than a blanket ceiling, I think a "Can't vote, can't contribute" limitation much more reasonably limits the ability of outside interests to affect particular races without restricting actual voters in a district from speaking as loudly as they wish via campaign contributions.

I also think that there is no perfect solution, including doing nothing.
11.21.2008 7:49pm
Sarcastro (www):
[I agree with White's dissent in Buckley. Money doesn't talk, it shouts.]
11.21.2008 8:01pm
hattio1:
I'm going to break your rule. I haven't read any of the articles. But, the can't vote, can't contribute would just make the whole problem of taking voting rights from felons even worse. Seriously, why should those who are most effected by our criminal laws, and our criminal justice system have the least say in it.
11.21.2008 8:19pm
Fub:
hattio1 wrote at 11.21.2008 8:19pm:
I'm going to break your rule. I haven't read any of the articles. But, the can't vote, can't contribute would just make the whole problem of taking voting rights from felons even worse. Seriously, why should those who are most effected by our criminal laws, and our criminal justice system have the least say in it.
Since I brought up the proposed rule, I suppose I should respond. I agree in large part with the broad point.

I would point out that not all states permanently bar felons from voting, so there is some mitigation.

I also would go much further on that issue. I think felons should not be prohibited from voting unless they are convicted of violating election laws. I see no reason to prohibit somebody from voting who played internet poker, possessed crack cocaine, or even violated some law that really should be a crime. The numbers of such would-be voters are tiny, relatively speaking, and unlikely to influence any election outcome even if they voted as a bloc.

But prohibition from voting, and from contributing, for feloniously violating an election law has a quality of justice that is distinct and recognizable -- if you can't play honest, then you can't play at all.
11.21.2008 8:36pm
Cornellian (mail):
Campaign finance restrictions are all unconstitutional, but I don't know why the current jurisprudence to the contrary would apply any differently to judicial elections.

I think the difference is you're entitled to a neutral judge, but not a neutral Congressman or Senator. You're not going to get a neutral judge when he just got elected with a $1 million campaign contribution from the guy on the other side of your lawsuit or when your cause is unpopular but an election is close at hand.

Personally I don't think state court judges should be elected in the first place. The role of a judge is to apply the law, regardless of the popular will and that is fundamentally inconsistent with a popularly elected position. If judges are getting out of hand the appoint different judges. I could also live with a system of appointment by the governor, ratification by the legislature followed by suitably structured retention elections.
11.21.2008 10:19pm
RightKlik (www):
I do not believe there should be any kind of campaign finance restrictions for anybody. Campaign finance disclosure would be an interesting alternative.

http://rightklik.blogspot.com/
11.22.2008 4:33am
methodact:
What's hard to understand? You make the Microsoft antitrust suit go away, you get made chief justice.
11.22.2008 7:56am
PersonFromPorlock:
ARCraig:

Campaign finance restrictions are all unconstitutional, but I don't know why the current jurisprudence to the contrary would apply any differently to judicial elections.

Oh, I imagine judges will find a reason.
11.22.2008 8:01am
JB:
I agree that campaign finance limits would be best obviated by removing judicial elections. Judges are supposed to stand between the accused and the mob, and they can't or won't do that effectively if they are beholden to the mob for their job.
11.22.2008 11:14am
MartyA:
The appointment or election of judges is an issue that attracts my attention every so often. I haven't formed an answer but I do know that candidates for election to the Texas State Supreme Court can spend more than a million dollars in their campaigns. They don't get contributions that size from bake sales.
11.22.2008 12:58pm
TerrencePhilip:
Cornelian wrote: I think the difference is you're entitled to a neutral judge, but not a neutral Congressman or Senator. You're not going to get a neutral judge when he just got elected with a $1 million campaign contribution from the guy on the other side of your lawsuit or when your cause is unpopular but an election is close at hand.

Personally I don't think state court judges should be elected in the first place. The role of a judge is to apply the law, regardless of the popular will and that is fundamentally inconsistent with a popularly elected position. If judges are getting out of hand the appoint different judges. I could also live with a system of appointment by the governor, ratification by the legislature followed by suitably structured retention elections.


I'd like to see one of these "neutral" judges you talk about. That aside, I live in a state with an elected judiciary and do see that the system leads to a great deal of abuse. Something involving appointments and retention elections appears to work better in other states from what I can tell. Heck, maybe we can even aspire to, I don't know, requiring that people wanting to be judges demonstrate mastery of certain job skills, as in the competitive examinations in France. See this story ("He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France. "It gives you nightmares for years afterwards," Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive.")
11.22.2008 5:31pm
gattsuru (mail) (www):
I don't think such a ban would be unconstitutional under current jurisprudence, per say, although if the Supreme Court gets their heads out of their arses, it would become so.

That doesn't mean I think it's a good idea. Campaign finance laws have been regularly used to silence speech that should be a major part, such as an editorial section of a gun here or a a writer there. As the last election demonstrated quiet adequately, the laws have no noteworthy effect on a sufficiently motivated bad guy, and that's on a federal stage.

It's just too difficult to make a law that only blocks illegitimate funding without giving a trigger-happy politician-turned-DA the ability to make life miserable for someone who dared speak their mind.
11.22.2008 7:37pm
traveler496:

I do not believe there should be any kind of campaign finance restrictions for anybody. Campaign finance disclosure would be an interesting alternative.


Has anyone considered the opposite - requiring all campaign contributions to be made via TBD mechanism X to which it's impossible to prove that one has contributed?

This is an attempt to address legitimate free speech concerns while making it more difficult for politicians to discern who, among the many who claim to have bribed them, actually did (and to what extent:-).
11.22.2008 8:56pm
Ignatius Riley (mail):
Isn't this a solution that's wanting for a problem?
11.23.2008 9:26pm