USA Today reports on the Caperton v. Massey case and it cites public opinion polls suggesting deep concern about the political contributions to judges.  This same use of polling data has entered for years into the debate on legislative campaign finance issues, typically to show that the public was convinced that its government was on the take.  It has never been especially satisfactory empirical support for reform measures, it being fairly sure that the public will always profess mistrust of the motives of their elected officials.  Studies, like those of Persily and Lammie, have added to the grounds for handling these results with care. 

     So a fair question is whether the data on judicial finance questions is subject to the same objections.  A case could be made that they should, in this sphere, count for more. 

     Here is one difference:  it is not true that the opening position of citizens is that judges are habitually tempted to favor interests—say, donors—who are parties to the case before them.  It is more the case that judges are seen to have a higher obligation of impartiality:  they are expected to hear and decide cases without bias.  The view taken of politicians is more complex.  It is understood that they are politically self-interested, in the sense that they care a great deal about holding office, and that in seeing to the good health of their political prospects, they answer to the constituent, voter and supporter demands.  Not every citizen contemplating this vocational imperative may approve of this behavior—though it suits a given observer well enough when his own demand is met—but it is accepted that politicians behave this way and that there are reasons why they should.  What voters ask is a modicum of self-restraint, judgment and, even more, execution:  a good politician may be a rascal, but she will be forgiven if effective in balancing skillfully the competing pressures for her time and attention.  A bad politician is just a rascal who, having nothing to show for it, can expect less mercy.

     What's the difference, respond opponents of limitations on judicial campaign finance, if states have decided that judges should stand for election?  The answer is not all elections are the same, and not all those who stand for election are expected to behave the same way if elected.  Voters are comfortable referring to their elected Representative as "my Congressman"; it is not standard practice to refer to a State Supreme Court Justice as "my Justice."  Once judicial candidates are off the hustings, they put on their robes, and this is supposed to be a meaningful change in attire.

     It is not surprising, then, that 90% of those polled in the Gallup/USA Today believed that judges should not hear a case involving a campaign contributor.  Large numbers may also be concerned, if asked, about the effect of campaign finance regulation on the legislative branch, but not all answers to questions like this can or should be read the same way. A difference in the reading, in the weight given to the results, is appropriate in the case of the elected judiciary.

Bob Bauer