Table of Contents for Free to Judge
1.The Modern Era of Big Money Judicial Elections
This chapter presents the crisis of big-money judicial elections in the United States. Unlike federal judges, nine out of ten state judges are elected, and these elections have become increasingly politicized, partisan, and expensive. Using cutting-edge data and statistical analysis, this chapter describes findings that money too frequently manages to buy what it wants from judges and judicial elections—campaign finance contributions significantly predict elected judges' later decisions in favor of their contributors' interests. Just as importantly, this chapter details the book's findings about why money matters so much to judges. The book presents the strongest evidence that judges are actively biased by the need to raise campaign money for their next election, which they need to win to keep their jobs. Judicial election reform should be focused on the specific problem of judicial re-election.
2.The Rise of Judicial Elections: How We Got Where We Are
This chapter describes the history of judicial elections and how money has played an increasing role in how judges get elected in the United States. The states didn't start with elections as the way to pick their judges, but judicial elections, ironically, were an attempt to remove judges from political corruption. Judicial elections themselves, however, eventually became politicized and subject to political forces that threaten judicial integrity. More recently, judicial elections have become even more political and competitive, with campaign money playing a bigger and bigger role. Judicial elections today, at least for many state supreme courts, now resemble statewide elections for other offices in terms of partisanship, intensity, and campaign fundraising and spending. Some political scientists think this is a good thing. This chapter explains why they are wrong.
3.The Crocodile in the Bathtub: How Elections and Money Influence Judges
This chapter explains what we have learned about the influence of campaign money on judges. With so much money spent on judicial elections, and so much at stake in state supreme court cases, many worry that campaign money allows wealthy donors to buy the judiciary and judicial outcomes they want. This chapter explains that our work and the empirical literature on judicial elections and decisionmaking substantiates this worry to a troubling extent. Judges respond to electoral and other retention incentives. As a result, campaign money influences judges toward the preferences of campaign donors. Worse, judges appear to anticipate competitive re-election fights and become more punitive in criminal cases to protect themselves from accusations that they are "soft on crime." Judges, in short, act like we'd expect rational political actors to behave. They want to keep their jobs and regularly do what they must to ensure this outcome.
4.Why Money Matters
This chapter explains that judges decide in favor of their campaign donors because they are biased by re-election concerns, not simply because they happen to be ideologically predisposed in their donors' direction. We demonstrate this robust empirical finding with the most comprehensive dataset of campaign finance contributions and state supreme court decisionmaking available so far. That is, judges appear influenced by the forward-looking need for campaign money to get re-elected. Judges eligible for re-election reflect the interests of their campaign donors as a general matter. Judges no longer eligible for re-election, our lame duck judges, reflect the influence of campaign money far, far less. This chapter rules out alternative explanations for our findings with a series of robustness checks that explore and ultimately confirm that age, last-term effects, and initial selection methods can't explain the biasing influence of money.
5.How to Fix Judicial Elections and Campaign Finance
This final chapter endorses a reform approach that targets judicial re-election as the source of campaign money's influence on judges. The temptation of the next election, of re-election, causes judges to sway toward the interests of campaign contributors who might help them keep their jobs. This chapter weighs the pros and cons of different mechanisms that remove re-election from judges' decisionmaking, from a single-term limit to longer terms to lifetime tenure. We conclude that a limitation of a single term best insulates judges from re-election worries and effectively removes the influence of money. Of course, this type of institutional choice implicates other considerations, but from the standpoint of money's biasing effect, the possibility of re-election is the main problem. What we know is that the current system of big-money judicial elections isn't working. We need our judges to be free to judge.