The U.S. Supreme Court might eventually overrule the Montana Supreme Court's decision. But even before Citizens United, judicial races were becoming increasingly expensive. Candidates for state high courts alone raised $207 million from 2000-2009 nationwide, a huge increase from the previous decade's $83 million, tapping "special interest" donors on both the left and right, according to a report by three nonpartisan groups -- the Justice at Stake Campaign, based in Washington, D.C.; New York University's Brennan Center for Justice; and the National Institute on Money in State Politics, based in Helena, Mont. As that report noted, those figures do "not include the tens of millions more spent on 'independent' TV ads" on top of the campaign contributions; an atmosphere of "nasty and misleading ads, and pressure on judges to signal (future) courtroom rulings on the campaign trail ... has become the new normal."
All that money and those dueling court decisions are just more evidence that arguments over how to select judges are heating up. Retired U.S. Supreme Court Justice Sandra Day O'Connor, who also served as an Arizona state judge, warns that "judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution."
Details vary, but voters in every Western state elect many of the key judges, either initially or when appointed judges run for new terms in retention elections. Some elections are nonpartisan and others are blatantly partisan, with candidates linking themselves to political parties and even taking stands on specific issues that come up in court cases.
Some people -- mostly Republicans who think judges lean toward environmentalists and workers' rights -- want judicial elections to become more openly partisan. One of the boldest efforts along those lines is occurring in Arizona. Since 1992, that state has used a "merit system" for selecting judges in its appeals courts and urban district courts: The State Bar of Arizona helps nominate a list of candidates, then the governor picks judges from the list, and when judges face retention elections, their performance is evaluated in a bipartisan process. The U.S. Chamber of Commerce has "praised Arizona's appointment system, citing its public transparency and the broad, representative makeup of Arizona's judicial nominating commissions," reports Justice at Stake. But last year, the Arizona Legislature -- a stronghold of right-wing Republicans -- passed a bill that seeks to reduce the State Bar's role and allow the Legislature to grill judges prior to elections. Arizona voters will decide the issue in a ballot measure this November.
Those who favor the merit system -- which is also used, in various forms, in California, Colorado, Wyoming, Utah and New Mexico -- think it's generally more insulated from political influence, because judges only face voters after they've served for a while. Rebecca Love Kourlis, a retired Colorado Supreme Court justice who now directs the Institute for the Advancement of the American Legal System at the University of Denver, believes it's better than initial elections, which can favor big-money interests. "There's a fight for control of our courts," she warns.
Nevertheless, Nevada voters rejected a 2010 ballot measure that would have created a merit system similar to Arizona's, even though Sandra Day O'Connor visited Nevada to campaign for it.
In Montana, where voters initially elect state Supreme Court justices in nonpartisan races, last year the Republican-controlled Legislature considered three bills that sought to make changes. Karla Gray, a retired Montana Supreme Court chief justice, backed a merit selection plan much like the one under attack in Arizona. It failed to pass, as did an attempt to begin outright partisan judicial elections.
What did clear the Montana Legislature was a bill sponsored by Republican Sen. Joe Balyeat, who is known for pushing Tea Party values. Like many other Republicans, Balyeat believes that liberal-leaning wealthy trial lawyers and their cohorts fund the campaigns of like-minded candidates in the statewide judicial elections, and that most voters, especially in conservative rural areas, either don't pay attention or don't know the differences between candidates.
"Judges already are political," insists Balyeat. For him, money isn't the problem in elections. "Large (conservative) portions of the state and large factions" are marginalized in statewide judicial elections, he says. His measure would begin local -- rather than statewide -- elections for Montana Supreme Court justices, in newly drawn geographic districts where local concerns would be more prominent. Democrats say the districts' boundaries would give Republican voters unfair majorities, but the Legislature put Balyeat's reform on the ballot for this year's June primary election. If voters approve it, Balyeat predicts, "these judge candidates will be running in local areas where ... their track records and reputations" are well known, and voters will find it easier to elect judges with whom they agree.
Balyeat's effort has sparked another court battle: Last November, a group of voters -- including some delegates to the 1972 Montana Constitutional Convention who helped write the Constitution's provision for statewide elections of judges -- filed a lawsuit trying to strike his measure from the ballot. The measure, now known as LR-119, is an illegal attempt to amend the Montana Constitution, they say.
Whatever happens with LR-119 and the Montana Supreme Court's decision in the Western Tradition Partnership case, it's clear that even retention elections are becoming more political, and many people are losing faith in judges' integrity. A 2010 Harris poll revealed that a startling 70 percent of U.S. voters -- irrespective of political affiliation -- believe that campaign contributions impact judicial decision-making. "The perception is the reality, and I think we're losing the public," Karla Gray says. In other words, the days of Judge Harney and Judge Clancy may not be entirely behind us.