South Carolina is one of only two states in which the legislature chooses the state’s judges. (Virginia is the other.) Often, the biggest concern about this form of selection is that legislators will choose their colleagues for the bench rather than seeking out the best possible candidates.
This week, however, a different issue arose in South Carolina’s judicial election process. In a contested race for the state court of appeals, private attorney Blake Hewitt was elected over Allison Renee Lee, a state trial judge with 20 years of experience. Hewitt was considered highly qualified for the position, but lacked any of Lee’s judicial experience. Hewitt is also white, and Lee is black.
After the election, several (but not all) black legislators briefly walked out of chambers in protest. Some suggested that the election was an act of racism, while others expressed concern about ensuring greater diversity on the state bench.
In the wake of several scandals that rocked its supreme court and led to a number of impeachments, West Virginia has introduced a series of reforms to improve public confidence in its judiciary. This week, Chief Justice Beth Walker updated the state legislature on the court’s internal reforms, including new travel and financial policies to combat the budgetary abuse that was endemic in the court until just a few months ago.
Separately, the state’s Judicial Investigation Commission has asked candidates in judicial elections to call on third parties to stop running false or misleading ads against their opponents, and to disavow any false or misleading statements that are made. While this opinion will be difficult to enforce–especially in a tightly-contested race–it would be refreshing for candidates to commit to it. There is little benefit to winning a judicial election, only to see public confidence plummet in the judiciary because the candidates are being routinely trashed on TV.
Two Dallas-area judges have been disciplined by the State Commission on Judicial Conduct for endorsing each other’s bid for reelection this past fall.
The commission issued two public warnings to both Kim Cooks, judge of the 255th District Court, which handles family law, and Andrea Martin, judge of the 304th District Court, which handles juvenile law.
According to their warnings, during their 2018 campaigns for re-election, Cooks and Martin produced and distributed a campaign mailer that featured their names, titles and likenesses, urging voters to vote for each of them for their respective judicial races. The mailer included statements such as “Keep this talented team working for our families and for our children.”
Cooks and Martin also produced two campaign videos and posted them on social media in which they ask voters to support both of them in their reelection efforts. In one of the videos, the judges state: “We are your Dallas County Judges, your people’s judges. We are the community judges. And we need your help.”
Cooks and Martin also told the commission that they jointly hosted a fundraising event, at which separate tables were set up for each campaign. They also stated that their individual campaigns shared equally in the costs associated with the mailer, the videos and the fundraising event.
The judges pled innocent ignorance, stating that campaign behavior was not covered at new judges school. But that’s a poor excuse, and hardly demonstrates the sensible judgment that one expects of an impartial jurist.
Almost five years ago, a local branch of the NAACP in Terrebonne Parish, Louisiana, sued state officials in federal court, arguing that the state’s “at-large” system for electing judges systematically disenfranchised minority voters. After a trial in 2017, the federal district court agreed with the plaintiffs that the existing election scheme was unconstitutional. But the parties could not agree on the appropriate remedy, so the judge has asked both sides to suggest candidates for a special master, who will assist the judge in crafting an appropriate remedy.
“The parties didn’t agree on a remedy and the Legislature didn’t pass a remedy, so now it’s the court’s obligation to come up with a remedy,” [NAACP attorney Leah] Aden said on Saturday. “The court isn’t an expert in drawing maps. Judge Dick wants to do everything by the book, so she’s going to hire someone who’s familiar with drawing maps to aid her as an expert to evaluate the maps that we put up and potentially draw their own map. This person is basically a technical expert.”
A federal judge gave the state Legislature the first opportunity to remedy Terrebonne’s voting system, but the only proposed bill during the 2018 session died in committee.
This has been a fascinating case for observing how one sovereign’s judiciary (the federal courts) addresses fundamental issues pertaining to another (a state court system). It will be equally interesting to see how the final resolution plays out.
Two lawsuits involving judicial elections–one each in Alabama and Arkansas–were the subject of new developments this past week.
In Alabama, the NAACP and Lawyers Committee for Civil Rights filed a federal lawsuit alleging that the state’s method of electing state appellate judges discriminates against African-American voters. The lawsuit claims that the absence of black judges on any state appellate court is the result of discriminatory vote dilution tactics. The state moved to dismiss the case on the grounds of sovereign immunity, but U.S. District Judge W. Keith Watkins denied the motion to dismiss, and set the case for a bench trial. Attorneys for the state have now taken their case to the Eleventh Circuit Court of Appeals, asking that court to overturn Judge Watkins’s refusal to dismiss the case.
The Arkansas case involved a controversial attack ad against incumbent state judge Courtney Goodson, who was seeking reelection. The Judicial Crisis Network, a conservative group, had been running the ad on several stations in northwest Arkansas when a county judge barred its further broadcast in May. The corporate owner of a Little Rock television station appealed the injunction. But last week, the state court of appeals ruled that the issue was now moot, since Justice Goodson has won reelection, and the ad was no longer airing. The issue may be moot for now, but the larger issues–prior restraint of political speech, the influence of “dark money” in elections, and the wisdom of electing judges in any event–remain.
This blog has followed the story of Phillip Spiwack, a Chicago-area lawyer who legally changed his name in 2012 to Shannon O’Malley. The reason for the change: he was planning to run for judge in Cook County, and recognized the stubborn reality that having an Irish woman’s name would be a valuable commodity at the polls.
Spiwack lost his first race in 2010 while using his original name. The next year, the DePaul Law Review published a study showing that Cook County judicial candidates with Irish and female names tended to have an advantage in judicial elections. Spiwack changed his name to Shannon O’Malley shortly thereafter, and then deliberately sat out judicial races for the next several cycles to circumvent a state law requiring candidates who undergo a name change within three years of an election to disclose their old names on the ballot.
The plan worked. O’Malley won his election last week, even though he refused to submit his qualifications to any local bar associations and therefore did not receive any bar recommendations.
O’Malley may or may not prove to be a good judge. But this whole episode speaks poorly of the low-information judicial voters in Chicago.