criminal_justice_jurisprudence.jpgVarious states have different methods of selecting judges. Some 39 of them still elect them, including WV. Our court has been in the news a lot lately, and not in a good way. Then I spotted this in USNews:

...There are nearly 40 other state Supreme Court races ahead this year, some of which are already gaining attention—particularly in states where the outcome could tilt the political balance of the court. The Mississippi high court has four seats up for election; Washington has three; and in West Virginia, where half of the five-member Supreme Court has come under scrutiny over connections to a top businessman and campaign contributor, two seats are contested.

Though costly and contested judicial elections have long been common in states like Ohio and Illinois, the battleground has now spread to places more commonly known for more civil judicial politics. "Groups that had previously focused on trying to influence lawmaking," says Mike McCabe, executive director of Wisconsin Democracy Campaign, "now want to impact how laws are interpreted and enforced."

The change stems partly from the growth of tort reform in state electoral politics. Realizing that the courts could have the final say in tort reform laws, both business and plaintiffs' lawyers are now putting more money into supporting friendly judicial candidates. Their efforts were aided by a 2002 U.S. Supreme Court ruling that held that Minnesota's rule barring judicial candidates from discussing political issues violated their First Amendment rights. Judicial candidates were now free to take political stances on hot-button issues like abortion, and the result, some observers say, is more partisan judicial contests.

...Outside groups have added to these amounts, spending 2½ times more on television ads in the 2004 and 2006 cycles than in the previous two. And increasingly, this money is coming from the business community, which represented 44 percent of all campaign money—twice the percentage of donations from lawyers, according to the Brennan Center.

It's not only judicial elections that are coming under scrutiny this year. In a handful of states, merit-based selection panels are facing questions of political manipulation and attracting the interest of groups like the Federalist Society. Under the merit system, various panels, composed of governors' appointees and lawyers, usually appointed by the state bar, nominate candidates for appointment by the governor.

I've done a bit of reading -- from the WSJ to the Brennan Center and beyond. The bottom line is there is no easy answer. With elections, you get democracy in action -- and all the messiness and potential for jimmying the system with copious money and falsehoods that entails. With appointments, you get the potential for favoritism, cronyism, and outright partisan hijacking. Both can produce high quality judges for the public interest...or the best judges that money can buy (YouTube). But how can you know?

The other day, I met with a couple of my old law school professors at a local bookstore. One of them is running for the Supreme Court this year, and I wanted to pick his brain on the oddity of running for a political primary for a judicial position that is supposed to be apolitical once you reach the bench. That just seems so odd to me. And for those outside the legal profession who don't know any of the players well? It has to be even more odd -- making the line-up of endorsements and special interest support all the more important.

Bob Bastress was my Constitutional Law professor, and I worked for him my first summer on a project for the WVACLU. He's a great guy -- the sort of law school professor who takes time to explain a complex issue, and who also does serious representation for folks who can't afford big legal guns who don't do pro bono work.

Bob has worked on cases which have opened public education through textbook access and tried to prevent school consolidation from wrecking rural schools. He once challenged a hidden camera in a workplace locker room, ostensibly put there for "safety" considerations, but which happened to be focused on the lockers of the three guys trying to unionize the business. He has put in years of work on ballot access and anti-discrimination suits, union representation, and civil liberties cases for the WVCLU. And he's been a professor at the WVU College of Law since 1978.

Which is to say, he's not exactly rolling in the benjamins when it comes to campaign cash. He's been endorsed by the largest newspaper in WV, and he got the highest ratings from the state bar membership, and a host of union nods. But campaign cash talks loudly and, increasingly in races across the country, that campaign cash is coming from special interest proxys.

I asked Bob if he'd be willing to stop by this morning and chat a little about running for judicial office, with the understanding that he's limited in how he can answer certain questions on issues that might eventually come before the court. It isn't often that we have an opportunity to talk with someone who is facing this kind of race -- judicial elections are, sadly, not covered nearly often enough in terms of scrutiny and discussion -- and I thought everyone would enjoy this.

So, without further ado, I welcome Bob Bastress and open the floor to questions...

(Bob's campaign website, btw, accepts donations via PayPal, if you are so inclined.)