Date of this Version
The U.S. Supreme Court’s first decision on judicial elections— Republican Party of Minnesota v. White—came on the heels of the first national opinion survey devoted entirely to judicial selection issues. In late 2001, 1,000 randomly selected members of the public and 2,500 state appellate and trial judges answered questions about their participation in judicial elections, opinions about current practices, and support for various reform proposals. Some questions were asked of judges and public alike, while other questions concentrated on their respective roles in the election process. The surveys were conducted on behalf of the Justice at Stake Campaign, a nationwide coalition of legal and citizen organizations concerned with preserving judicial independence. These surveys present a unique opportunity to evaluate empirically some of the explicit and implicit assertions made by respondents, lower courts, amici curiae, and the Supreme Court justices concerning what the public thinks and wants, and how judges experience campaigning and the canons. Indeed, the survey’s findings are a part of the record in the White decision. One amicus brief (filed by the Brennan Center) and Justice O’Connor’s concurring opinion cited the survey. All references are to survey questions about the influence of judicial campaign fundraising. Justice O’Connor noted that: Even if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary. See Greenberg Quinlan Rosner Research, Inc., and American Viewpoint, National Public Opinion Survey Frequency Questionnaire (2001), available at http://www.justiceatstake.org/ files/JASNationalSurveyResuls.pdf) (describing survey results indicating that 76 percent of registered voters believe that campaign contributions influence judicial decisions); id., at 7 (describing survey results indicating that two-thirds of registered voters believe individuals and groups who give money to judicial candidates often receive favorable treatment). The surveys have more to say on the topic of campaign fundraising by judges, and include questions that describe judicial and voter behavior at election time. Survey participants were also asked to indicate their support for various proposals for improving judicial elections. Other questions sought more abstract impressions of what it means to be a judge. The status of the judge as a politician was a particular theme. Questions ask how judges should campaign and how judges compare to other public officials who run for office. The survey thus allows some exploration of fundamental concerns about judicial independence and accountability. The result is a complex image of judges. Both judges and the public hold equivocal views of where the judge as decision-maker intersects with the judge as fundraiser and campaigner.