Representative Lindsey has responded to my less than mature criticisms. He writes:
Despite the ugly tone invoked in last year’s state Supreme Court race, Georgia is right to require that our judges stand for popular election. The conduct of judicial campaigns over the past two years, however, highlights the need for reform of the judicial election process.
Every poll taken on the subject indicates overwhelming support for popularly electing judges’and the people are right. Our society depends on a judiciary independent from control from either the executive or legislative branches. In order to maintain that independence, the judiciary must derive its authority directly from the people and there is no better way to do that than through the ballot box.
The conduct of the campaigns in the last two election cycles, however, cannot help but raise alarms and demands for changes. We’ve seen tens of thousands’and even millions’of dollars (sometimes anonymously)from one interest group or the other flood money into judicial campaigns. Both major political parties have also weighed into these nonpartisan races.
As a result, the impartiality and fairness of our court system is now at risk. That is why we need to seek changes in the upcoming General Assembly session.
Recusal, Party involvement, and Independent Committees (HB 97)
Last year, Presiding Justice Carol W. Hunstein expressed concern over the money spent by financial, insurance, and medical groups to support her opponent. J. Michael Wiggins replied, bashing trial lawyers who donated heavily to Hunstein and then appeared before her court. This is one of those rare times when both sides in a campaign have a point.
While both candidates proclaimed their independence from those who supported them, at the very least receiving large financial support creates the appearance of partiality. In every court case, it is vital for the parties to believe that they will receive a fair shake from the judge. The conduct of supporters for Hunstein and Wiggins jeopardizes that faith.
Therefore, we should require in any case in which either a party or a lawyer has contributed, either directly or indirectly, more than $500 to the judge’s election, that the judge recuse him or herself from the case.
Furthermore, I ran for the State House as a member of the GOP because my elected position makes public policy. Therefore, my Republican partisanship and ideology are an integral part of my job. However, the role of a judge is very different. A judge’s job is to apply the policy created by the legislative and executive branches to the cases before them’even when they personally disagree with that policy as long as it is constitutional. That is why the Georgia Constitution requires judicial elections to be nonpartisan. We don’t need Republican or Democratic judges who apply their ideology to cases. We need impartial judges who can set aside their personal beliefs and apply the law.
Two years ago, however, the nonpartisanship of judicial races began to erode. Some Republicans backed G. Grant Brantley’s Supreme Court challenge and the Democratic Party weighed in financially on behalf of now-Chief Justice Leah Ward Sears. The Democrats argued that they did so because so many Republicans were supporting Brantley. Last year, my own Republican Party waged an open mail and television ad campaign for Wiggins. Recently, a Republican leader defended this action by saying that what they had done was only fair given what the Democrats did in 2004. As a parent, I’ve heard this kind of circular argument before from my teenage boys when they are fighting. It isn’t a winning argument in my household and it’s not one in this debate.
Furthermore, not only is partisanship in general dangerous to our judiciary, but how the parties are now deciding whom to back is profoundly undemocratic. These judicial candidates are not being selected by the voters in primaries but are being anointed by a select few in the hierarchies of the parties. Therefore, this trend is not only corrosive to the judiciary but to the political parties themselves.
Therefore, we need to remove the political parties from these races and restore the nonpartisan component of judicial elections.
Finally, the involvement of independent committees and 527s in backing and attacking one candidate or another is eroding the effectiveness of campaign finance laws but allowing supporters of candidates to come in through the back door with unlimited funds in campaigns. Therefore, we need to require that these groups operate under the same contribution restraints as campaign committees do when they move beyond issue advocacy and actively support a candidate.
Public funding of judicial races (HB 102)
I’m not a particularly great fan of public funding of elections in general either but given the special circumstances surrounding judicial elections, I must concede that public funding is necessary to protect the peculiar role of judges in our society.
U.S. Supreme Court Chief Justice John Roberts in his confirmation hearings before the Senate Judiciary Committee summed up very succinctly the difference between judges and other public servants when he said, ‘Judges are not politicians. They cannot promise to do certain things for votes.’ The same goes for raising money to conduct a modern political campaign.
North Carolina recently initiated a public funding program for statewide judicial elections and we need to look at its success and consider the same for Georgia. Such a system requires candidates to show broad-based support through smaller donations before receiving public funding. (We should even consider requiring a certain amount of support from nonlawyers.) The system is voluntary. Candidates are not required to participate and the funds used are raised through donations and a voluntary check-off system on taxes.
In conclusion, the present system is broken. If not my suggestions, given me a better idea. I’m listening.