There are times, in our national political conversation, when the good news is so pathetically puny that it actually makes you feel worse.
Like speculation that if things go really well this spring in Washington, Congress may be able to keep the Highway Trust Fund from going bankrupt. Or that New York’s State Legislature might be able to pass some reforms, were it not distracted by a potential indictment of the Senate’s majority leader.
It gives you the same sensation you might feel if your house was flattened by a tornado and the insurance company called to assure you that they’re replacing the porch light.
This brings us to Wednesday’s Supreme Court ruling on judicial elections.
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I know “judicial elections” is possibly not the topic you were hoping for. However, this is truly exciting news:
The nation’s top court has decided that it’s OK for the state of Florida to prohibit judicial candidates from calling up people who are likely to have business before their court and asking for contributions.
The majority opinion stressed that Florida still allows judges up for re-election to create campaign committees to do their fundraising. Also to write thank-you letters to donors. Chief Justice John Roberts added that it was fine for judicial candidates to “give speeches and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns, on radio, television or other media.” Don’t want the world to think we’re getting carried away.
The reform community was thrilled. This is how low our expectations for clean elections have dropped, people.
“Great news,” said the nonpartisan advocacy group Justice at Stake.
“A momentous victory for public faith in the integrity of our judicial system,” said an attorney at the Campaign Legal Center.
We are talking here about a 5-4 decision. Four of the nine justices felt this was going too far. Antonin Scalia – what would we do without Scalia? – found the whole idea of restricting judges’ ability to hit up trial lawyers for money a “wildly disproportionate restriction” upon judicial candidates’ right of free speech.
“Look, any time we can get a campaign finance victory from this Supreme Court majority, the response should be: hallelujah,” said Fred Wertheimer of Democracy 21.
Wertheimer has been fighting to get big money out of political campaigns since the beginning of time. And what have you and I done? Zip. So he and his fellow reformers deserve a happy day and the last word. After we sigh a deep sigh.
Roberts provided the swing vote on the decision, an irony not lost on pretty much anybody. It’s been Roberts who’s led the court in castrating limits on the role of big money in other elections. The difference in this case, he explained, is that “judges are not politicians.” While Roberts thinks his own profession needs to appear impartial and above the fray, he appears to feel that there’s no need whatsoever for the public to believe that candidates for, say, president of the United States, aren’t being swayed by rich donors.
The case was brought by Lanell Williams-Yulee, a plaintiff who you’ve got to feel at least a little bit sorry for. She ran for a seat on the county court in Tampa and sent out a general appeal for donations, promising to “bring fresh ideas and positive solutions to the judicial bench.” It produced no contributions whatsoever. The incumbent walloped her in a primary. And then, to add insult to injury, the Florida Bar charged Williams-Yulee with violating its rule on personal solicitation of donations, recommended a reprimand and ordered her to pay $1,860 in court costs.
Williams-Yulee argued that her First Amendment rights were being violated. In the real world, the level of public interest in judicial elections is generally so minimal that she’d probably have needed George Clooney, a rock band and several really adorable kittens to attract any voter attention.
There are ways to make the selection of judges better. You could provide public financing, like several states did with a matching fund system that the court ruled unconstitutional in 2011. Or give the whole job of filling the bench to a nonpartisan committee of experts, a process known as “merit selection.” Who could be against merit selection? A whole bunch of places, actually.
“In recent years I have been distressed to see persistent efforts in some states to politicize the bench and the role of our judges,” former Justice Sandra Day O'Connor said last year.
O'Connor has made merit selection her grand crusade since she retired in 2006. On the one hand, that’s a great cause. On the other, her departure triggered the current Roberts era, which then turned our presidential elections into one long dating game between candidates and corporate oligarchs.
But at least it’s constitutional to draw a line for judges at the thank-you letter stage. Whoopee.