Business ethics 88.
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This week's most important business-ethics event was a novel. John Grisham's newest novel, The Appeal, was released in the US to adoring reviews. At the heart of the book is a business scandal.
As described by Peter Lattman in The Wall Street Journal (I still haven't gotten hold of the book): "The story plays out with a chemical company found guilty of dumping toxic waste and liable for the deaths of scores of people in a fictional Mississippi town. The owner of the company tries to get out of paying a $41 million jury verdict by spending millions to help elect a Mississippi Supreme Court justice to influence the appeal."
In his writings and interviews, Grisham has made clear that he considers the scenario realistic, and the process of judge selection by elections flawed - but not inherently so. The problem is not so much the political process itself, it is the role of private money, he says, adding: "As long as private money is allowed in judicial elections we will see competing interests fight for seats on the bench."
The obvious implication is that the judges will serve the interests of those who backed them in their races. In an interview, Grisham was equally blunt, saying: "Keep the private money out."
Grisham seems to have been prescient, since just this week results of an important study of the impact of private money were released. Tulane University law professor Vernon Valentine Palmer was dismayed that Louisiana Supreme Court justices don't recuse themselves from cases involving litigants who contributed to their campaigns. He decided to see if it matters, and with the help of economist John Levendis, did a simple statistical study of how judges rule in such cases.
Palmer discovered that judges rule in favor of their contributors 65 percent of the time. (Still a lot less than 100%.) Even when judges normally have a measurable pro-plaintiff or pro-defendant record, these trends are reversed when contributors are involved. Furthermore, the study found that the larger the contribution, the greater the impact on decisions.
A 2006 New York Times article by Adam Liptak and Janet Roberts used slightly less scientific methods but reached identical conclusions regarding justices in Ohio, another state that elects its Supreme Court judges and allows private campaign contributions: Money matters, and more money matters more.
It's obvious from these studies that the judicial selection process can be excessively politicized. But that doesn't mean that the solution is the extreme insulation of judicial selection from the political process, as is practiced in Israel. In fact the exact opposite is true. The results of this study are extremely worrisome for Israel.
One important point to note is how minor the suggested reforms are. Even the most vocal critics of the judicial selection process in the US are not suggesting getting politics out of the system, and not necessarily eliminating direct elections of justices. Even John Grisham, who considers the topic worthy of a thriller, only insists that private money should be kept out of the race. (Though he does state that a nomination-appointment system is better.) Prof. Palmer is willing to settle for even less: Judges can run with private money, but they should recuse themselves when donors appear before the court.
What the Palmer and Liptak-Roberts studies demonstrate convincingly is that judges, consciously or unconsciously, feel themselves beholden to those who got them their jobs and that this has a profound impact on their decisions. The evident solution is to involve a large number of points of view in the selection process.
The ideal process would seem to be the one used in most countries, as well as in many states in the US: Judges are nominated by a committee including lawyers, lay people and occasionally retired judges (never sitting ones), and appointed by politicians, who over the course of years will represent a mix of parties and political points of view. Executives (presidents and governors) particularly tend to serve short terms and so will be long gone for most of a judge's tenure.
Elections are problematic, because the voters are not expert in evaluating judge's qualifications and also tend to be apathetic.
The worst problem is the perception, supported by these studies, that judges can be bought. But there is a consolation prize: Even "bought judges" will represent a variety of points of view, since lots of people have money. There are rich liberals and rich conservatives, rich corporations and rich labor unions, and so on. Result: You may be able to afford a judge, but not a whole bench. (Even if you could afford one, you wouldn't want to spring for one. As Joseph Kennedy was reputed to have said, "Don't buy one vote more than necessary. I'll be damned if I pay for a landslide.")
The worst system imaginable is where all judges are continually beholden to one interest group. This is the situation in Israel, where sitting judges are the dominant force in judicial selection and the court president the dominant voice among the judges.
In practice, the chief justice has chosen fellow justices virtually alone. So judges know exactly on which side their bread is buttered, and if they ever forget, they can be easily reminded when they want to actually hear a case.
Politicians have an occasional windfall opportunity to pack a court when a number of seats become vacant during one administration. But in Israel the presiding justice gets to pack the court every single case, since he or she chooses the composition of the bench for each case.
John Grisham dramatizes what Liptak and Roberts, and Palmer, convince us of: Judges tend to rule in accordance with the interests of whoever helped them get their seats on the bench. This implies that the greatest threat to effective judicial independence is to have judges chosen by a small and unchanging body - suggesting that contrary to the frequent statements of current and former justices, Israel's system actually has the least judicial independence among democratic countries.
The author is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.