Whither Peremptories?

In a recent decision, Commonwealth v. Rodriguez, the Massachusetts Supreme Judicial Court considered whether a prosecutor’s use of a peremptory challenge to remove a prospective Hispanic juror violated the state and federal constitutional prohibition against excluding jurors “solely because of bias presumed to derive from their membership in discrete community groups.”

The prosecutor argued that he exercised a peremptory challenge against the juror because he found troubling “not only the juror’s failure to reveal her own and her son’s experiences in the court system, but her express indication to the contrary on the juror questionnaire.” The court concluded that the prosecutor’s use of the peremptory in this instance was not unconstitutional, given his legitimate and race-neutral concern about the prospective juror’s ability to follow simple instructions “in the context of a trial alleging murder in the first degree and involving two defendants.”

In a brief concurring opinion, Chief Justice Margaret Marshall reiterated her concern about the continued use of peremptory challenges. She stated that, “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives, it is time either to abolish them entirely, or to restrict their use substantially.” (Quotation omitted.)

Chief Justice Marshall accordingly stands in contrast to Justice Antonin Scalia, who in the 1994 decision J.E.B. v. Alabama decried the Supreme Court’s extension of prohibited bases for the exercise of peremptory challenges to include gender. Justice Scalia lamented the regulation of peremptories via equal protection, arguing that decisions such as J.E.B. did damage to the peremptory challenge system,

which loses its whole character when (in order to defend against “impermissible stereotyping” claims) “reasons” for strikes must be given. The right of peremptory challenge “is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” The loss of the real peremptory will be felt most keenly by the criminal defendant, whom [the Court has] until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.”

The question is whether we have reached a time when we should no longer tolerate the use of peremptories that may be based upon undetectable irrational prejudice. Back in the day, peremptory challenges existed in the context of a jury pool comprised entirely of similarly-situated members of the community—all white, all male. Thus arbitrary juror selection could not be based upon prejudices we now view as suspect—suspect today because those prejudices may deny a defendant or a juror the constitutionally mandated equal protection of the laws.

The end of peremptories, as Chief Justice Marshall well knows, would mean more efficient jury selection. For cause challenges allow for reasoned argument and rebuttal—not to mention transparency—in all the ways that the use of peremptories does not.

But there may yet be a use for peremptories, as my colleague Vic Hansen explains in a forthcoming article, “Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military,” in military courts-martial peremptories may be the best way to ensure defendants a fair trial. As he notes, the military context is one closer than the civilian criminal trial to the situation Blackstone contemplated, where prospective jurors are in a real sense similarly-situated as members of a particular military community. The effectiveness of the use of peremptories in that context, though, may be further evidence of why they create such problems in civilian courts.

—Lawrence Friedman

State Judicial Elections: Constitutional but Unhealthy

When we say that a product or process is “kosher,” we mean that it meets a minimum standard of quality or wholesomeness. Food sold as kosher must be certified as having been prepared in full accordance with Jewish dietary law. More figuratively, to say that something is kosher is akin to saying that it “passes the smell test” – it satisfies certain expectations about its suitability and appropriateness.

Deeming something kosher, however, only means that a baseline standard has been met; it doesn’t mean that it is actually good for you. Not all kosher food is healthy (witness the delicious but positively heart-stopping overstuffed pastrami sandwich), and not all “kosher” procedures in American democracy are advisable. It would be constitutional, for example, for Congress to eliminate all federal district courts, although virtually no one would think that it is a good idea.

Four times in the past decade, the Supreme Court has weighed in (directly or indirectly) on the constitutionality – the “kosherness” – of state judicial elections. Thirty-two states choose some or all of their judges in contested elections; in many of those states, candidates hit the campaign trail armed with party endorsements and special interest money. Despite growing concern that judges, as neutral arbiters, should not earn their positions through partisan politics or big-money political campaigns, the Court has repeatedly affirmed that such campaigns are, for the most part, entirely within constitutional bounds. In 2002, the Court held in Republican Party v. White that the First Amendment allowed judicial candidates to announce their positions on controversial issues while on the campaign trail. In 2008, the Court held unanimously that New York State’s byzantine, party boss-dominated system of selecting judicial candidates was purely a state issue, notwithstanding the sentiment that (in Justice Stevens’s words) the system was just plain “stupid.” This past Term, the Court opened the door to greater corporate and union election spending, including but not limited to judicial elections. Only in the 2009 Caperton v. Massey decision did the Court suggest any practical limitation on state judicial elections, holding that a West Virginia Supreme Court Justice had erred by refusing to recuse himself from a case directly involving his biggest campaign donor.

The declaration of the mere constitutionality of judicial election processes, however, has done nothing to improve the grim reality of the elections themselves. A terrific new report from the Justice at Stake Campaign, Brennan Center for Justice, and National Institute for Money in State Politics graphically documents the rampant growth in the past decade of campaign spending, television advertising, special interest involvement, and free-falling public confidence in the judiciary associated with judicial election campaigns. Among the findings:

* Campaign fundraising more than doubled over the past decade, from $83.3 million in 1990-99 to $206.9 million in 2000-09;
* “Super spenders” dominated judicial campaigns, with the top five (primarily special interest) spenders in elections spending over $470,000 each;
* Much of the money came from national business coalitions on one side and local plaintiffs’ bars on the other;
* Law firms have been able to secretly shuttle (in some instances) hundreds of thousands of dollars to their preferred candidates through PACs – candidates who, if victorious, would have a good chance of sitting on a case involving that firm;
* So-called “nonpartisan” races (in which the candidate’s party affiliation is not listed on the ballot) have become as costly and as nasty as their partisan counterparts.

Given these figures, it is unsurprising that about three-quarters of Americans – and about half of all state judges – believe that contributions to judicial campaigns affect the outcome of courtroom decisions. In an era where other public institutions are increasingly the subject of public skepticism and scorn, the courts can ill-afford a similar crisis of confidence.

Is there hope? Although several scholars quoted in the report suggest that judicial elections are here to stay, there are enough cracks in the façade to suggest a brighter future. More states are implementing public financing for judicial elections, and others are contemplating getting rid of elections altogether. Nevadans will have the opportunity to move to a “merit selection” system this November, effectively jettisoning elections in favor of a system in which judges are appointed from among qualified, screened candidates, evaluated during their term, and subjected to retention elections at term end. In doing so, Nevada would join a number of states with successful merit selection systems – states which manage to strike a sensible balance between judicial independence and accountability.

Jordan Singer