1 00:00:00,040 --> 00:00:02,240 Speaker 1: There's more than one Supreme Court hanging in the balance, 2 00:00:02,240 --> 00:00:04,840 Speaker 1: and next week's election. In addition to the U. S 3 00:00:04,840 --> 00:00:08,080 Speaker 1: Supreme Court and its lingering vacancy, twenty seven states will 4 00:00:08,119 --> 00:00:11,280 Speaker 1: hold elections for their highest courts. In some places, the 5 00:00:11,320 --> 00:00:14,200 Speaker 1: fights are bitter, expensive and potentially pivotal for the law 6 00:00:14,200 --> 00:00:17,600 Speaker 1: in those states. Here's one ad that's running in North Carolina, 7 00:00:17,680 --> 00:00:20,800 Speaker 1: where redistricting has become a major issue. It's in support 8 00:00:20,800 --> 00:00:23,400 Speaker 1: of Mike Morrigan, a Democrat running for the North Carolina 9 00:00:23,440 --> 00:00:28,479 Speaker 1: Supreme Court, against Republican Bob Edmunds. It's called the Snake, 10 00:00:28,920 --> 00:00:32,480 Speaker 1: a long, skinny congressional district drawn along I eight five 11 00:00:32,840 --> 00:00:37,280 Speaker 1: to segregate African American voters. The Snake and others like 12 00:00:37,400 --> 00:00:40,839 Speaker 1: it were drawn by state legislators as a partisan power 13 00:00:40,880 --> 00:00:44,479 Speaker 1: grad and just as Bob Edmonds, he wrote the decision 14 00:00:44,600 --> 00:00:49,760 Speaker 1: supporting his party's discrimination. And here's another from Kansas, where 15 00:00:49,760 --> 00:00:52,760 Speaker 1: an ad features the relatives of a murder victim who 16 00:00:52,800 --> 00:00:55,280 Speaker 1: blamed the States Supreme Court for voting to set aside 17 00:00:55,320 --> 00:00:58,840 Speaker 1: the murderer's death sentences. My brother was a school teacher, 18 00:01:00,440 --> 00:01:04,160 Speaker 1: and this cause has nothing to do with any political 19 00:01:04,280 --> 00:01:09,800 Speaker 1: parties or any politicians Anybody telling you any different is 20 00:01:09,880 --> 00:01:13,400 Speaker 1: line to you. Our families are taken a stand. We're 21 00:01:13,440 --> 00:01:16,080 Speaker 1: tired of being treated this way by these Candida Supreme 22 00:01:16,080 --> 00:01:19,040 Speaker 1: Court judgs. We're doing this so no other Candidon has 23 00:01:19,120 --> 00:01:22,200 Speaker 1: to go to what we've gone through with us to 24 00:01:22,240 --> 00:01:25,160 Speaker 1: talk about the subject of judicial elections. Is Alicia Bannon, 25 00:01:25,480 --> 00:01:27,959 Speaker 1: Senior council at the Brennan Center for Justice. She's in 26 00:01:28,000 --> 00:01:30,959 Speaker 1: the studio, New York, and she's a critic of judicial elections. 27 00:01:31,560 --> 00:01:34,560 Speaker 1: And Jack Park who's of council at Strickland Brockington Lewis 28 00:01:34,600 --> 00:01:39,480 Speaker 1: in Atlanta, and he supports partisan judicial elections. Alicia, before 29 00:01:39,520 --> 00:01:43,000 Speaker 1: we get into the merits of judicial elections, can you 30 00:01:43,000 --> 00:01:46,520 Speaker 1: just give us a broad overview comparing it with previous years. Um, 31 00:01:47,080 --> 00:01:49,040 Speaker 1: how much money is being spent this year? How many 32 00:01:49,040 --> 00:01:54,000 Speaker 1: states are we talking about where we have heavily contested elections. Well, so, 33 00:01:54,680 --> 00:01:57,320 Speaker 1: nationwide there there are thirty eight states that use some 34 00:01:57,560 --> 00:02:02,320 Speaker 1: form of election to choose their High Court justices. And 35 00:02:02,400 --> 00:02:05,160 Speaker 1: you know, each year we see, you know, different states 36 00:02:05,200 --> 00:02:09,519 Speaker 1: have particularly active races. This year, there's about twelve states 37 00:02:09,520 --> 00:02:12,560 Speaker 1: where we've really seen a lot of money pour into 38 00:02:12,600 --> 00:02:15,640 Speaker 1: these races, a lot of UM a lot of special 39 00:02:15,639 --> 00:02:18,000 Speaker 1: interest attention. And you know, that's a trend that we've 40 00:02:18,040 --> 00:02:21,240 Speaker 1: been seeing now for many years, you know, particularly since 41 00:02:21,240 --> 00:02:25,280 Speaker 1: around two thousand, we've seen UM judicial elections become a 42 00:02:25,320 --> 00:02:28,880 Speaker 1: lot more politicized and UM have a lot more money 43 00:02:29,000 --> 00:02:32,680 Speaker 1: pour into them. So this year in North Carolina, Kansas, Louisiana, 44 00:02:32,760 --> 00:02:35,200 Speaker 1: those are some of the states Washington where we've been 45 00:02:35,200 --> 00:02:37,720 Speaker 1: seeing a lot of attention. And Jack, can you just 46 00:02:38,040 --> 00:02:41,000 Speaker 1: explain the groundwork for us? What what are the different 47 00:02:41,000 --> 00:02:43,280 Speaker 1: forms of elections we have in various states, And of 48 00:02:43,280 --> 00:02:47,639 Speaker 1: course some states get their Supreme Court justices through appointment. 49 00:02:50,240 --> 00:02:53,440 Speaker 1: A large number of states do not use elections. They 50 00:02:53,600 --> 00:02:56,720 Speaker 1: use what's not generally referred to as a Missouri plan, 51 00:02:57,040 --> 00:03:05,440 Speaker 1: where a panel will nominate candidates for state appellate positions 52 00:03:05,520 --> 00:03:08,800 Speaker 1: and submit those nominations to the governor or and the 53 00:03:08,880 --> 00:03:14,040 Speaker 1: governor gets to choose them. Uh. Other states would use 54 00:03:14,080 --> 00:03:19,480 Speaker 1: nonpartisan judicial judicial elections or retention elections. And then there 55 00:03:19,520 --> 00:03:23,680 Speaker 1: are partisan elections in in a number of states. And 56 00:03:23,720 --> 00:03:27,800 Speaker 1: my experience, UH, largely comes from Alabama, where the elections 57 00:03:27,800 --> 00:03:31,760 Speaker 1: are partisan. Alicia, you look at a place like say 58 00:03:31,760 --> 00:03:35,280 Speaker 1: the race in Kansas right now and you're a critic 59 00:03:35,360 --> 00:03:40,000 Speaker 1: of judicial elections, but you know, you have crime issues 60 00:03:40,040 --> 00:03:42,560 Speaker 1: that people care about. People care a lot about capital punishment, 61 00:03:42,600 --> 00:03:46,000 Speaker 1: They care about whether courts are liberal or conservative. What's 62 00:03:46,040 --> 00:03:49,840 Speaker 1: wrong with the kind of ads and election process that 63 00:03:49,920 --> 00:03:52,600 Speaker 1: you have in a place like Kansas right now? Sure, 64 00:03:52,600 --> 00:03:54,720 Speaker 1: and I should say I think we're critics of how 65 00:03:54,760 --> 00:03:57,480 Speaker 1: elections are functioning right now. You know, I think it's 66 00:03:57,520 --> 00:04:01,000 Speaker 1: it's interesting that elections were introduced in the nineteenth century 67 00:04:01,040 --> 00:04:03,560 Speaker 1: as a reform measure. There was a concern that judges 68 00:04:03,640 --> 00:04:06,600 Speaker 1: were too closely aligned to the political branches. They weren't 69 00:04:06,600 --> 00:04:09,360 Speaker 1: really being a check. I think that the concern, one 70 00:04:09,400 --> 00:04:11,880 Speaker 1: of the concerns we have now is that elections aren't 71 00:04:11,880 --> 00:04:15,360 Speaker 1: serving that function anymore. So I think there's two big concerns. 72 00:04:15,400 --> 00:04:17,760 Speaker 1: One is just the role of money in these elections 73 00:04:18,040 --> 00:04:20,599 Speaker 1: and the conflicts of interest that it can create for 74 00:04:20,839 --> 00:04:24,520 Speaker 1: judges who are then hearing cases frequently involving some of 75 00:04:24,560 --> 00:04:27,719 Speaker 1: the same lawyers and litigants that are giving them money 76 00:04:27,960 --> 00:04:31,440 Speaker 1: or spending in connection with their campaigns. And the second 77 00:04:31,520 --> 00:04:34,839 Speaker 1: is what the focus on particular decisions on the bench 78 00:04:35,200 --> 00:04:37,520 Speaker 1: can do the next time the judge is hearing a 79 00:04:37,560 --> 00:04:39,719 Speaker 1: controversial case. You know, in the end of judge is 80 00:04:39,720 --> 00:04:42,279 Speaker 1: supposed to decide a case based on their understanding of 81 00:04:42,279 --> 00:04:45,120 Speaker 1: the law, not out of fear that they're going to be, 82 00:04:45,200 --> 00:04:47,279 Speaker 1: you know, the subject of an attack ad the next 83 00:04:47,320 --> 00:04:51,160 Speaker 1: time they're facing election, Jack, do you think the kind 84 00:04:51,240 --> 00:04:53,000 Speaker 1: of ads that you heard at the top of the 85 00:04:53,520 --> 00:04:57,400 Speaker 1: of the segment are are helpful for for voters as 86 00:04:57,480 --> 00:05:00,320 Speaker 1: they try to decide who should be serving a on 87 00:05:00,360 --> 00:05:05,120 Speaker 1: their top court. They do convey information to voters, uh, 88 00:05:05,240 --> 00:05:11,239 Speaker 1: they may not convey the information that uh the target 89 00:05:11,279 --> 00:05:14,600 Speaker 1: of the ad once conveyed, and the target of the 90 00:05:14,640 --> 00:05:20,600 Speaker 1: ads is free to submit their own ads. The and 91 00:05:21,000 --> 00:05:25,400 Speaker 1: yet Alicia talks about about the lawyers appearing that can 92 00:05:25,440 --> 00:05:30,640 Speaker 1: be handled through recusal standards where judges should refuse can 93 00:05:30,680 --> 00:05:34,599 Speaker 1: be required by state rules to recuse from hearing certainty cases. 94 00:05:35,279 --> 00:05:41,600 Speaker 1: As you know, back in UH, California, voters aus the 95 00:05:41,720 --> 00:05:45,080 Speaker 1: three justices of the California Supreme Court, and one of 96 00:05:45,120 --> 00:05:48,400 Speaker 1: them was rhes Bird, who voted against capital punishment in 97 00:05:48,480 --> 00:05:52,480 Speaker 1: each of the sixty one cases that came before her. UH. 98 00:05:53,200 --> 00:05:58,160 Speaker 1: Alicia criticizes, which would see as one offs. But you know, 99 00:05:58,480 --> 00:06:01,360 Speaker 1: at a certain point there is a at tern h 100 00:06:02,320 --> 00:06:06,000 Speaker 1: judicial behavior that a voter might say, this is not 101 00:06:06,080 --> 00:06:10,400 Speaker 1: what I want from a judge. Alicia, you said, it's 102 00:06:10,440 --> 00:06:13,200 Speaker 1: the kind of elections or the way elections are running 103 00:06:13,279 --> 00:06:16,760 Speaker 1: that bothers you, and as much as anything else, if 104 00:06:16,839 --> 00:06:20,800 Speaker 1: not more so, how should they work? Then? If if 105 00:06:21,120 --> 00:06:24,560 Speaker 1: you've identified some problems, um, there may be ways that 106 00:06:24,640 --> 00:06:26,880 Speaker 1: are not to deal with them. But what is it 107 00:06:26,920 --> 00:06:29,080 Speaker 1: that you suggest is the way that these elections ought 108 00:06:29,160 --> 00:06:32,400 Speaker 1: to function? Sure? Well, I mean, first off, I think 109 00:06:32,440 --> 00:06:36,119 Speaker 1: there there are important steps that states could take to 110 00:06:36,120 --> 00:06:40,120 Speaker 1: to better safeguard their elections, including stronger recusal rules. Very 111 00:06:40,160 --> 00:06:43,559 Speaker 1: few states have, you know, rules regarding when judges should 112 00:06:43,560 --> 00:06:47,000 Speaker 1: be stepping aside from cases in the face of UM 113 00:06:47,160 --> 00:06:50,960 Speaker 1: big money big money spending in elections. Public financing for 114 00:06:51,040 --> 00:06:54,320 Speaker 1: judicial elections so that candidates aren't having to fundraise from 115 00:06:54,320 --> 00:06:57,960 Speaker 1: the interests that are appearing before them is another important measure. Also, 116 00:06:58,000 --> 00:07:01,039 Speaker 1: there's only three states in the entire country that have 117 00:07:01,160 --> 00:07:03,680 Speaker 1: some form of life tenure for judges, and every other 118 00:07:03,800 --> 00:07:07,520 Speaker 1: state judges are facing either re election or retention, election 119 00:07:07,680 --> 00:07:10,640 Speaker 1: or reappointment. And I think there's a lot of evidence 120 00:07:10,680 --> 00:07:14,200 Speaker 1: that those kinds of job security pressures are particularly troubling 121 00:07:14,240 --> 00:07:17,440 Speaker 1: for judicial independence. So, for example, judges are more likely 122 00:07:17,480 --> 00:07:20,680 Speaker 1: to sentence harshly in election years. And you know, regardless 123 00:07:20,720 --> 00:07:23,520 Speaker 1: of how you feel about criminal justice issues, I think 124 00:07:23,560 --> 00:07:25,600 Speaker 1: we should be able to agree that a judge shouldn't 125 00:07:25,600 --> 00:07:28,560 Speaker 1: be making those decisions based on whether or not here 126 00:07:28,640 --> 00:07:31,840 Speaker 1: she is up for election. Jack, what about that the 127 00:07:31,880 --> 00:07:34,160 Speaker 1: money issue? Even if a case doesn't rise to the 128 00:07:34,280 --> 00:07:38,440 Speaker 1: level of requiring recusal, doesn't that potentially have an influence 129 00:07:38,480 --> 00:07:41,440 Speaker 1: on a judge of say his or her candidacy was 130 00:07:41,520 --> 00:07:44,440 Speaker 1: funded by trial lawyers or business interests, sometimes from out 131 00:07:44,440 --> 00:07:48,280 Speaker 1: of state. UM. Sometimes you know, without even a disclosure 132 00:07:48,280 --> 00:07:53,880 Speaker 1: of who who the donors are. And in Alabama, I 133 00:07:53,880 --> 00:07:56,560 Speaker 1: think that there's pretty good disclosure on where the money 134 00:07:56,600 --> 00:07:59,760 Speaker 1: is coming from. And I think that's what voters need 135 00:07:59,840 --> 00:08:05,400 Speaker 1: to insider. We'd see disclosure rules that give information to voters, 136 00:08:05,400 --> 00:08:09,600 Speaker 1: and and I would say that partisan affiliation gives information 137 00:08:09,640 --> 00:08:14,560 Speaker 1: to voters. We know, for example, that UH Justices Tagan 138 00:08:14,640 --> 00:08:19,200 Speaker 1: and so do Mayor, who were appointed by President nominated 139 00:08:19,200 --> 00:08:24,160 Speaker 1: by President Obama confirmed with the Court think differently from 140 00:08:24,200 --> 00:08:31,160 Speaker 1: Justices Alito and Roberts, who were nominated by President Bush. Alicia, 141 00:08:31,480 --> 00:08:33,920 Speaker 1: how much of the money in these races. We only 142 00:08:33,920 --> 00:08:36,079 Speaker 1: about thirty seconds. How much of the money in these 143 00:08:36,160 --> 00:08:38,959 Speaker 1: races is coming from out of the states where they're 144 00:08:39,000 --> 00:08:42,800 Speaker 1: actually happening. Um a lot. And that's actually a growing 145 00:08:42,880 --> 00:08:46,960 Speaker 1: trend that we're seeing a lot more attention from national groups, 146 00:08:46,960 --> 00:08:49,560 Speaker 1: particularly on the right, but in this election in states 147 00:08:49,559 --> 00:08:51,840 Speaker 1: like North Carolina on the left as well. We saw 148 00:08:51,880 --> 00:08:55,480 Speaker 1: President Obama made an endorsement in the North Carolina Supreme 149 00:08:55,520 --> 00:08:58,200 Speaker 1: Court race. We've been seeing other national groups going in 150 00:08:58,240 --> 00:09:00,800 Speaker 1: as well. So I think we're seeing this just become 151 00:09:00,840 --> 00:09:04,800 Speaker 1: more salient every every cycle. We are talking with Alicia Bannon, 152 00:09:04,920 --> 00:09:07,800 Speaker 1: Senior council at the Brennan Center for Justice, and Jack 153 00:09:07,800 --> 00:09:11,440 Speaker 1: Park who's of council at Strickland Brockington. Lewis also a 154 00:09:11,480 --> 00:09:15,439 Speaker 1: former Deputy Attorney General UH for the state of Alabama 155 00:09:15,440 --> 00:09:18,040 Speaker 1: for what twelve years? Jack, Did I get that right? Yeah? 156 00:09:18,160 --> 00:09:22,440 Speaker 1: Deputy Okay, Um, we're talking about the subject of state 157 00:09:22,480 --> 00:09:28,240 Speaker 1: supreme courts and judicial elections. Um. Alicia. Jack wrote a 158 00:09:28,320 --> 00:09:31,920 Speaker 1: very interesting law review article about this subject and and 159 00:09:31,920 --> 00:09:34,400 Speaker 1: and the point he was making in that was that, 160 00:09:34,760 --> 00:09:38,480 Speaker 1: you know, judicial elections maybe aren't the perfect system, but 161 00:09:38,640 --> 00:09:41,720 Speaker 1: they ensure some accountability. You have this trade off between 162 00:09:41,720 --> 00:09:46,240 Speaker 1: independence and accountability, and judges shouldn't be removed from having 163 00:09:46,280 --> 00:09:49,240 Speaker 1: some accountability to the people of a state. What what 164 00:09:49,320 --> 00:09:52,239 Speaker 1: do you think about that? Well, I think it's absolutely 165 00:09:52,240 --> 00:09:55,520 Speaker 1: the case that accountability is an important value and that 166 00:09:55,640 --> 00:09:57,640 Speaker 1: you know, when you're looking at choices of how to 167 00:09:57,720 --> 00:10:01,679 Speaker 1: choose judges, you do see values like independence and accountability 168 00:10:01,800 --> 00:10:05,240 Speaker 1: sometimes come into tension with each other. What I'd say 169 00:10:05,320 --> 00:10:06,839 Speaker 1: is that, I mean, first off, I think there are 170 00:10:06,840 --> 00:10:09,880 Speaker 1: other ways of holding judges accountable. You know, we have 171 00:10:10,360 --> 00:10:12,920 Speaker 1: a system of appeals where you know, cases if a 172 00:10:13,000 --> 00:10:15,640 Speaker 1: judge makes a legal error, there are ways of correcting that. 173 00:10:15,920 --> 00:10:18,880 Speaker 1: We have disciplinary procedures. If judges are acting in an 174 00:10:18,960 --> 00:10:21,959 Speaker 1: unethical way. Um, you know, I think too often how 175 00:10:22,000 --> 00:10:25,800 Speaker 1: we see judicial elections functioning is you know, one or 176 00:10:25,840 --> 00:10:29,760 Speaker 1: two opinions get oftentimes cherry picked, sometimes presented in a 177 00:10:29,800 --> 00:10:32,600 Speaker 1: pretty misleading way to the public. So I don't think 178 00:10:32,640 --> 00:10:35,360 Speaker 1: it's all that effective in terms of you know, kind 179 00:10:35,360 --> 00:10:39,319 Speaker 1: of catching mistakes or holding judges um accountable in that 180 00:10:39,400 --> 00:10:42,800 Speaker 1: in that sense for for particular opinions. And I mean 181 00:10:42,840 --> 00:10:44,600 Speaker 1: the other piece of it is that you know, in 182 00:10:44,640 --> 00:10:46,920 Speaker 1: the end the role of a judge is not to 183 00:10:47,320 --> 00:10:50,960 Speaker 1: just abide by majority preferences. You know, one really important 184 00:10:51,120 --> 00:10:53,680 Speaker 1: job of a judge is to sometimes stand up to 185 00:10:53,720 --> 00:10:56,240 Speaker 1: a majority, step up, stand up to the preferences of 186 00:10:56,240 --> 00:10:58,640 Speaker 1: the political branches and say that, you know, something is 187 00:10:58,679 --> 00:11:01,640 Speaker 1: not allowed under our constant stitution. And so, you know, 188 00:11:01,720 --> 00:11:04,640 Speaker 1: I think allowing the public to kind of override that 189 00:11:04,800 --> 00:11:08,199 Speaker 1: is very much intention with with one of the fundamental 190 00:11:08,280 --> 00:11:12,160 Speaker 1: jobs of judges. Jack one of Alicia's point, they're kind 191 00:11:12,200 --> 00:11:15,920 Speaker 1: of if you summarize, it could be seen as saying 192 00:11:17,559 --> 00:11:21,120 Speaker 1: judges shouldn't be making decisions based upon electoral considerations rather 193 00:11:21,200 --> 00:11:25,439 Speaker 1: than the law. And that's a frequent criticism of judicial elections. 194 00:11:25,760 --> 00:11:27,520 Speaker 1: As a as a proponent of them, how do you 195 00:11:27,559 --> 00:11:33,679 Speaker 1: respond to that criticism. What we're talking about here, in 196 00:11:33,760 --> 00:11:39,400 Speaker 1: particular is UH elections for state supreme courts, and those 197 00:11:39,440 --> 00:11:44,040 Speaker 1: courts are have the final say on what the constitution 198 00:11:44,080 --> 00:11:50,520 Speaker 1: of the state means, and sometimes what they say that 199 00:11:50,640 --> 00:11:54,800 Speaker 1: the state constitution means doesn't clearly come from the text 200 00:11:54,880 --> 00:12:01,840 Speaker 1: of the constitution, and they enter into areas that are 201 00:12:02,559 --> 00:12:07,439 Speaker 1: highly political and have been politicized in the states, capital punishment, 202 00:12:08,040 --> 00:12:14,000 Speaker 1: education funding, UH, public funding of charter schools and things 203 00:12:14,040 --> 00:12:19,360 Speaker 1: like that. And when they do, they frustrate, They can 204 00:12:19,400 --> 00:12:23,240 Speaker 1: frustrate the will of the majority. And uh Alex Fickle 205 00:12:23,320 --> 00:12:26,120 Speaker 1: in nine wrote a book about it called the Least 206 00:12:26,200 --> 00:12:29,959 Speaker 1: Dangerous Branch and talked about what he called the countermajoritarian 207 00:12:30,040 --> 00:12:38,160 Speaker 1: difficult and whenever the courts go counter to the majority, 208 00:12:38,720 --> 00:12:42,040 Speaker 1: uh the what the less frequently they do that, the 209 00:12:42,440 --> 00:12:46,199 Speaker 1: better for for them, I think, because every time they 210 00:12:46,240 --> 00:12:50,800 Speaker 1: do it with unless you can hold them accountable, you 211 00:12:51,080 --> 00:12:55,600 Speaker 1: end up with a judicial regime, of judicial supremacy. We 212 00:12:55,640 --> 00:12:57,440 Speaker 1: are going to have to leave it there. I want 213 00:12:57,440 --> 00:13:00,120 Speaker 1: to thank our guests, Alicia Bannon of the an In 214 00:13:00,240 --> 00:13:03,480 Speaker 1: Center for Justice in New York and Jack Park, former 215 00:13:03,520 --> 00:13:06,720 Speaker 1: Deputy Attorney General for Alabama and now of Council at 216 00:13:06,720 --> 00:13:09,720 Speaker 1: Strickland Brockington. Thank you both very much