Law professor: Appointing, not electing, judges not 'undemocratic'

By Karen Kidd | Nov 7, 2016

NEW ORLEANS – If Louisianans are genuinely troubled by the huge amount of campaign funds being spent on judicial elections in the state, they could stop electing judges, a legal ethics expert at Loyola University said during a recent interview.

"The only thing that can be done is to appoint, rather than elect, judges," Dane Ciolino, a law professor at Loyola University in New Orleans, told the Louisiana Record. "It's constitutionally difficult to say who can and who can't make campaign contributions."

State District Judge Marilyn Castle  

State and federal constitutions, as well as the 2008 U.S. Supreme Court Citizens United decision, allow for broad campaign contribution and spending under First Amendment freedoms of speech. Trial lawyers and other such groups also enjoy those rights and have for years made campaign contributions in Louisiana judicial races.

"I don't know that they can swing elections (but) they certainly can influence elections," Ciolino said.

However, the record amount of money being poured into Supreme Court races across the nation is raising brows, especially in a Louisiana Supreme Court race in which two Republican judges are seeking the seat of a retiring Democrat justice. One of those two Republican judges seeking the Louisiana Supreme Court seat has recently come under fire for donations received from trial lawyers.

State District Judge Marilyn Castle of Lafayette and Appellate Court Judge Jimmy Genovese of Opelousas are running against each other for the seat of retiring Associate Justice Jeannette Theriot Knoll and a 10-year term in the Louisiana Supreme Court.

Campaign contributions have been sticking points in the race between Genovese and Castle during the past year. During the first part of October, Genovese’s cash on hand was $260,998.76 while Castle’s cash on hand was $233,991.27, according to a Louisiana Ethics Administration Program’s campaign finance report.

Among attorneys in Louisiana, trial lawyers have been more conspicuous in their donations than other types of lawyers, Ciolino said.

"They've done a good job getting their voices heard," he said.

Those voices of trial lawyers have only gotten louder in Louisiana judicial races over the past decade, Ciolino said.

"If anything really has changed in that time, they've gotten better at being organized, more so than they were a decade ago," Ciolino said. "They only way to avoid this is to appoint judges rather that elect them in partisan elections."

Louisiana very much is the odd-state-out when it comes to how it elects its judges. Louisiana is one of only seven states that elect Supreme Court justices in partisan elections. The other states are Alabama, Illinois, New Mexico, Pennsylvania, Texas and West Virginia. Three other states, Michigan, North Carolina and Ohio, use a mix of partisan and non-partisan electoral processes to select Supreme Court Justices.

"Louisiana certainly is in the minority of states that still elects judges," Ciolino said. "The debate still continues about whether partisan elections are the best way to choose judges."

In other jurisdictions, that debate long has been settled. The nation's founding parents put in place a system by which the president appoints federal judges with consent of the U.S. Senate consent. Before the mid-1800s, almost all states admitted to the Union judges via a gubernatorial appointment with legislative confirmation. U.S. Supreme Court Justices are chosen though a nomination and confirmation process that involves the president and Senate, though that hasn't worked very well of late.

Appointing judges could be fairly done in Louisiana, Ciolino said.

"There is nothing undemocratic about appointing judges," he said.

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