Commentary: Judiciary should let sunshine in to reduce public skepticism

Introduction

More than any time in recent memory, the American people have reasonable doubts about the integrity of the judicial decision-making process.

When I was a network television journalist, I had the privilege of meeting or covering some of the most respected courtroom lawyers and judges in America, from Edward Bennett Williams and David Boies to courageous Alabama federal judge Frank Johnson and Supreme Court Justice Sandra Day O’Connor. I have also watched or investigated some of the worst.

In general, the judiciary is the least known part of government, the least investigated by the national news media, and the least besmirched by public scandal over the past half-century or so. The judicial decision-making process is shrouded in the most secrecy, except for national security, intelligence or law enforcement agencies.

Public perceptions about judges and the courts overall are favorable, but there are storm clouds. In a 1999 poll conducted by Indiana University for the National Center for State Courts, 79 percent of the American people believed that “judges are generally honest and fair in deciding cases.” However, 66 percent thought that “when a person sues a corporation, the courts generally favor the corporation over the person.” And 81 percent of the public believed that “judges’ decisions are influenced by political considerations.”

Of course, the Florida election debacle didn’t exactly disabuse anyone of that notion. The U.S. Supreme Courts intervention 5-4 along ideological lines was highly controversial, the stated reasoning and timing suspect. How could the court not be concerned about the equal-protection-under-the-law issue raised by George W. Bush back on Nov. 22, but then use that same argument weeks later, on Dec. 9? How could the court halt the Florida recount and then days later announce that there was no time to do a recount under a proper, single standard? The point is, as Anthony Lewis and others have written, that reasoned arguments are the bedrock of the credibility and legitimacy of our judicial system. The court majority’s opinion and stated reasoning were not convincing to millions of Americans.

Ironically, it now appears that then-Vice President Al Gore would have lost Florida without the courts intervention on behalf of Bush. Days after the election and Gore’s concession, Justices Antonin Scalia and Anthony M. Kennedy clinked glasses with Vice President-elect Richard Cheney at a Christmas party in McLean, Va., and received the warm thanks of Republican revelers.

A Newsweek poll shortly after the decision found that 65 percent of Americans believed that politics or partisanship played a role in the Supreme Court decision on the 2000 election- almost two-thirds of the country. Thirty percent of those answering a CNN/USA Today/Gallup poll reported losing confidence in the Court because of its conduct in the election.

I do not recall another instance in my lifetime in which the political motives of the Supreme Court justices were so widely questioned.

The Freedom of Information Act does not apply to the White House, Congress or the Supreme Court justices. We cannot know from appointment calendars, phone logs and correspondence, including e-mails, with whom the justices conferred and probably will never know.

Probably most Americans and even many journalists believe the sanctity of the deliberative process should be preserved. Most investigative reporters instinctively believe that all information is potentially useful, and that public officials, even those wearing robes, are flawed human beings, their actions requiring scrutiny. What has gnawed at me for years is this question: Has there generally been less scandal in the judiciary because less information is made available to the public, or is there inherently more “integrity” in this part of government? But alas, this is a long and separate discussion.

But there are some other ethics issues beginning to impugn the reputations and perceived probity of judges and the entire judicial process.

Raising campaign cash

For example, the most serious integrity issue surrounding the U.S. judicial process today, in my humble opinion, is that most state judges are elected. Which means, of course, that they are raising ever-larger sums of campaign cash millions of dollars from actual litigants and attorneys bringing cases before them. Thirty-nine states have judicial elections at some level; 87 percent of state appellate and trial judges face direct or retention elections. Seventy-eight percent of the American people believe that “elected judges are influenced by having to raise campaign funds,” according to the 1999 National Center for State Courts poll.

I don’t think Americans would approve of an auction process in baseball, in which both teams could pay the umpires directly. How can we hope to have equal justice under the law if judges are selected and elected based on money from economic and legal interests with business before the court? The implication, fairly or unfairly, is that if you contribute, you will get the best justice money can buy. Ka-ching!

Investigative journalist Sheila Kaplan has written extensively about this phenomenon, and produced a 1999 PBS Frontline documentary called “Justice for Sale,” with correspondent Bill Moyers. The costs of judicial elections have increased exponentially in recent years. For example, Los Angeles Superior Court campaign expenditures have increased at least 22-fold from 1976 to 1994. In Washington state, the average costs of judicial elections have more than tripled in 15 years, growing from $30,000-50,000 in 1980 to $150,000 in 1995.

Kaplan also found that:

• In Ohio, for her 1996 election, Supreme Court Justice Evelyn Stratton raised $74,885 from finance, insurance and real estate firms, $134,900 from lawyers and lobbyists, most of whom represent big business before the court, and $16,476 from medical interests. Not surprisingly, Stratton received the Ohio Chamber of Commerce’s highest pro-business rating.

• In Nevada, Supreme Court Chief Justice William Maupin received more than $80,000 from casinos and gambling interests, much of it while ruling favorably on a landmark casino case.

• In Pennsylvania, State Supreme Court Justice Russell M. Nigro reaped more than $458,473 from lawyers, mostly the plaintiffs’ attorneys, in one of the instances in 1996 in which they outspent the * corporate contributors and defense lawyers.

In Texas, pay to play

For years, no state has had a more notorious reputation for a pay-to-play judicial process than Texas. According to a remarkable recent study by a public interest organization, Texans for Public Justice, the 10 Texas Supreme Court justices who faced an election from 1994 through 1998 raised $12.8 million for those political campaigns. Fifty-two percent of the money they raised came from lawyers, law firms and litigants who filed appeals with the high court during this same period, the group said.

The justices were “four times more likely to accept an appeal filed by a campaign contributor than they were to accept an appeal filed by a non-contributor.” They were “10 times more likely to accept petitions filed by contributors of more than $250,000 than petitions filed by non-contributors.” And the court was particularly friendly toward petitions filed by Texas Chief Justice Tom Phillips old law firm, more than any other major appellate firm. “Baker Botts- one of just two firms that contributed more than $250,000 to the justices- enjoyed an astonishing petition-acceptance rate of 74 percent.”

In a 1999 survey conducted by the Texas Supreme Court and the Texas State Bar, 79 percent of the lawyers in Texas who appeared before the courts believed that campaign contributions affected the judges’ decisions.

Nationwide problem

But this is a nationwide problem. Helen Lavelle, media consultant for a Pennsylvania judge who won re-election in 1999, told Moyers that, “We sell a judge the same way we sell anything. Its unfair. People are ending up with a chance to be on a bench who have no business being there.” Florida Circuit Court Judge Roberto Pineiro told The Nation, “I was told not to despair about raising the much-needed cash, as there would be many attorneys willing to give me money solely because they would be appearing before me in court. This I felt raised a moral dilemma. But I was told not to worry, as I would never actually ask attorneys for money, I would simply ask attorneys to ask other attorneys to give me money. This, I was told, would be ethically correct, even if utterly contrary to the legal principle that an agent’s actions on behalf of a principal are deemed to be the actions of the principal.”

This issue has been studied and debated inside legal circles for decades. Many fine lawyers and judges have opposed cash-for-judges for years and years. But the unvarnished reality is that there is no incentive for the most powerful interests in this nation to curtail their access to and influence in the courts. And so the quietly corrupt status quo continues.

We certainly have seen this happen elsewhere in American politics, which helps to explain why only one in four Americans trusts the government today, down from three in four in the 1960s. But unfortunately, there have been some other recent cracks in the facade of judicial infallibility.

Aloofness to ethics concerns

At times, federal judges have displayed a disconcerting aloofness when it comes to individual ethics concerns. We expect them to know, better than any other public servants, what to do and what not to do.

And so it was surprising when it was reported in 1997 that Supreme Court Justice Ruth Bader Ginsberg had participated in more than 20 cases involving companies in which her husband, Martin Ginsberg, owned stock. A strict reading of federal statutes suggests that she might have violated federal law by not recusing herself from the decision-making process. After revelations about the situation, Martin Ginsberg promptly and correctly sold the stocks in question. Other federal judges have had similar potential conflicts of interest. Incidentally, the whole issue of judicial spouses, particularly lawyers what they actually do and how they stay clear of controversy and misperceptions has been relatively unexplored by journalists..

Beyond those vexing ethics issues, which demand that we fairly balance personal freedoms and public responsibilities, we recently witnessed a rather garish, unabashed attempted money grab by Supreme Court Chief Justice William Rehnquist. He backed legislation that would that would have allowed federal judges to receive outside honoraria for speaking engagements. If judges’ compensation is an issue today, Congress and the president ought to address it. But speaking honoraria for federal judges from special interests something forbidden for Congress is an outrageous proposal. Fortunately, it died. But what was the chief justice thinking?

Another federal judge, William Zloch of Florida, also initially opposed laudable efforts by APBnews.com to post the financial disclosure forms of federal judges on the Internet and took matters into his own hands. As chair of the federal judiciary’s committee on financial disclosure, he temporarily suspended all public access to the forms. Fortunately, Rehnquist intervened and laid down the law public records are public records, regardless of venue and APBnews.com was allowed to proceed. But shortly afterward, the chief justice expressed his support for reducing the amount and specificity of the financial information that federal judges must disclose.

All-expense-paid seminars

Finally, we come to the issue of all-expense-paid seminars and trips, paid for judges by special interest groups with ideological or financial agendas, such as conservative, property-rights organizations. A Washington-based group called Community Rights Counsel, with a website called www.tripsforjudges.org, found that more than 230 federal judges participated in “legal education” seminars between 1992 and 1998, paid for by corporations and organizations interested in pending legislation.

I am all for legal education for government lawyers and judges, but shouldn’t the government pay for that? In general, federal government officials now take thousands of privately funded trips all over the world each year, all sponsored by groups hoping to get something from the public-policy, decision-making process all in the ostensible, bogus name of saving the taxpayer money. Journalists key in on congressional trips, and largely ignore executive branch gigs and until recently, judicial jaunts. The Center for Public Integrity in recent years has exposed privately funded trips taken by Environmental Protection Agency, Federal Communications Commission, congressional and other federal employees, but more attention to these practices, including by judges and judicial personnel, is needed.

The Judicial Conference, the organization that sets policy for federal judges, has opposed any legislation banning privately funded seminars, but it has recommended that judges avoid any seminars funded by current or potential litigants. That would include just about every possible trip sponsor.

Judges deliberate in private, and much of their decision-making process is out of plain view. That is understandable on some level, certainly. But at the same time, reasonable public access to information, openness and accountability are also the attendant responsibilities of any public servant, including judges. Donning a black robe does not automatically connote civic virtue and exemption from the exigencies of public life.

Perhaps former Supreme Court Justice Louis Brandeis said it best: “Sunlight is the best disinfectant.”