As the Times puts it: Former Justice O’Connor Sees Ill in Election Finance Ruling:
“Gosh,” she said, “I step away for a couple of years and there’s no telling what’s going to happen.”
Justice O’Connor criticized the recent decision, Citizens United v. Federal Election Commission, only obliquely, reminding the audience that she had been among the authors of McConnell v. Federal Election Commission, the 2003 decision that was overruled in large part on Thursday. …
She has become increasingly vocal in recent years about doing away with judicial elections. Most states elect at least some of their judges; federal judges are appointed.
“Judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law’s restraints,” Justice O’Connor said Tuesday.
She added that last week’s decision was likely to create “an increasing problem for maintaining an independent judiciary.”
“In invalidating some of the existing checks on campaign spending,” Justice O’Connor said, “the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
Here’s an example of the dangers:
The judge overseeing the trial of the man accused of gunning down a Kansas abortion doctor … once courted the endorsement of an anti-abortion group – but … has insisted the case won’t be about abortion.
State District Judge Warren Wilbert galvanized both sides of the nation’s abortion debate this week when he refused on the eve of Scott Roeder’s murder trial to block the defense from trying to build a voluntary-manslaughter case by arguing that Roeder believed the killing of Dr. George Tiller was necessary to save unborn children.
Legal experts said the judge’s decision was a proper attempt to protect the defendant’s rights. But the move has put Wilbert and his background under the microscope heading into one of the nation’s most sensational abortion-related cases. …
Wilbert, a Republican who earned his bachelor’s and law degrees from Washburn University in Topeka, was appointed to the bench in 1995 and faced no opposition the first three times he stood election. The most recent race was a different story: Wilbert won re-election in 2008 by a mere 471 votes out of nearly 166,000 cast.
Kansans for Life’s political action committee endorsed Wilbert in that race, though it did not contribute to his campaign directly. …
Finance records show that Wilbert paid the group $75 in September 2008 to have his name listed in an ad in its quarterly newsletter, a 6-by-11-inch booklet of 24 pages that included articles such as “Update on Tiller charges” and “Planned Parenthood – a Snake in the Grass!” The judge also spent more than $16,000 on radio spots on seven stations.
The ad in the newsletter took up most of the bottom of page 16. It said: “The Kansans for Life PAC urges you to vote for, work for and pray for the following pro-life candidates.”
The “Tiller charges” referred to in the issue endorsing Wilbert involve the victim, George Tiller, who was acquitted of wrongdoing in that case. His chief persecutor, Phill (the extra ‘l’ is for ‘litigious’) Kline, was to be a witness in this case. So is Planned Parenthood, the group attacked as “a snake in the grass” in the newsletter where Wilbert advertised his KFL endorsement.
Now, KFL insists that they endorsed him because he is a good judge who doesn’t legislate from the bench, an assessment that local lawyers seem to agree with. His ruling allowing Roeder to claim the homicide was justifiable is probably the right choice, assuming Wilbert keeps a tight rein on the arguments Roeder makes.
Meanwhile, in Topeka:
Look out, justice system! Kansans for Life is coming to get you! Or, at least, they want people to believe that. You see, when marching on the Kansas Judicial Center … to commemorate the anniversary of Roe v. Wade, the organization announced that they would be opposing the retention election of state Supreme Court Justice Carol Beier. This is in retaliation for a couple of majority opinions she has authored over the last few years in hearings involving former Kansas Attorney General and all-around anti-choice superstar Phill Kline.
… Beier is the target, presumably because KfL is excited to break out their new “Fire Beier” slogan (this isn’t a joke, read the link at the bottom of this post). She also makes an easy target for being the one who specifically accused Phill Kline if displaying “little, if any, respect” for the Supreme Court in a ruling.
This may or may not affect Beier (one hopes not, as she was absolutely right), but fear of angering KFL is sure to influence how she and other judges (including Wilbert, perhaps) rule on and describe the actions of anti-abortion terrorists. So long as judges know they have to contend with re-election (or a retention election), they will have to pander to interest groups, and the more politically powerful the interest group, the harder it will be for judges to enforce the law.
And that creates an appearance of corruption, even if no judge ever acts corruptly.
Similarly, the way we elect our leaders creates a pall of corruption, even if no vote is ever exchanged as a quid pro quo. We can only hope Congress acts quickly to change things, and that one of the five justices who reversed over a century of precedent to open the loophole will step down and be replaced by a justice who thinks that corporate executives only deserve one vote.