Consequences Of Ads In Judicial Elections

In the news today :

Chief Justice Drayton Nabers is not participating in Exxon Mobil’s appeal of the largest verdict in Alabama history, the Alabama Supreme Court announced Monday.

Exxon Mobil is appealing a $3.6 billion verdict that the state government won in a lawsuit accusing the oil company of underpaying natural gas royalties to the state from wells drilled in state-owned waters along the Alabama coast.

Exxon Mobil’s appeal has become an issue in the race for chief justice, with Democratic Judge Sue Bell Cobb describing herself as the only candidate who has not taken oil money, and the Republican incumbent saying he has not received any donations from oil companies.

The Supreme Court sent a notice to attorneys on both sides of the Exxon Mobil case Monday saying Nabers “has not at any time participated and will not in the future participate” because he was involved in matters related to the litigation while serving as Gov. Bob Riley’s state finance director in 2003-2004.

I’ve already posted about this case, but what really caught my attention was the next part of the story:

In a related matter, attorneys for dog track operator Milton McGregor have asked Nabers to step aside from hearing an appeal involving the legality of electronic sweepstakes machines at the Birmingham dog track.

Their request, filed Thursday, cites Nabers’ campaign ads where he accuses his opponent of taking money from gambling interests and says he has “fought against the gambling bosses.”

A Jefferson County judge ruled that the sweepstakes games were legal, but Jefferson County District Attorney David Barber appealed that decision to the Supreme Court, which has not yet ruled.

Judges like to complain about being overworked. People like to complain about justice being too slow. Elections contribute to both problems. In addition to the costs associated with the election itself, statements about being (for/against)  (position/group/person/party) invite litigation about recusals.

But the added election and litigation costs are not the only problem with campaign ads. Ads like Nabers’ are fundamentally incompatible with being a judge. His job is not to be “for” or “against” anyone. His job is to give each side a fair hearing and then to make a decision based on the law and the facts in front of him.

I know he isn’t the only offender; anyone who wants to be elected has to do this stuff. But campaign promises leave the judge two options when elected. Either they do their job, in which case the ad was just a sham to get elected, or they keep their word, in which case they undermine the law. Neither option is very attractive.

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8 Comments on “Consequences Of Ads In Judicial Elections”

  1. MCF Says:

    Good point. Of course, Sue Bell Cobb could hardly be objective in a case involving Exxon or State Farm, now that she’s come out strongly against insurance companies and oil companies.

  2. wheeler Says:

    no doubt. thanks for pointing that out.

  3. MCF Says:

    I just don’t know what the answer is. It’s bad policy to elect judges, but I’m also terrified of having our lawyers selecting our judges. Even retention elections have their drawbacks — imagine an incumbent believing he has done a good job and will be easily retained, doesn’t run a campaign, and is blindsided by half a million bucks in trial lawyer/BCA money in the last two weeks before an election.

  4. wheeler Says:

    i definitely do not like the federal system. life tenure is too much job security.

    i do, however, really like the alabama bar’s proposal. if i remember correctly, the selection and retention committees both must include non-lawyers. nothing would prevent your hypothetical, but the fact that the defeat would just start the whole process over might be a disincentive for the usual suspects to spend the resources on the election. why spend all that money to beat a judge when you don’t know what you will get as a replacement?

  5. MCF Says:

    Good point, wheeler — haven’t thought about that.

  6. Dystopos Says:

    So what would it take to get the ABA’s measure passed? Any chance?

    Surely even the GOP could put all that campaign money to better use. Maybe a retirement home for Swift Boat Vets. Somewhere very isolated…

  7. walt moffett Says:

    Problem I see with the ABA proposal is the Evaluation Commission. Judges are accountable already and an extra layer would not help. Otherwise looks very good and would be better than my original thought of drawing names from a hat.

    Worrisome thought, since home rule is still a dream, is that the various factions would pour the money into state legislative races or into the county wide races.


  8. […] So there it is. I will leave the issue alone now. If you want more of my rants on judicial elections, go here, here, here, and here. Explore posts in the same categories: Elections, Appellate And Post-Conviction Issues […]


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