John Oliver’s eloquent rant about corruption from this weekend’s edition Last Week Tonight about the American judiciary has been going viral since the show aired Sunday night. “What he revealed was truly disturbing,” wrote Sarah Gray of Salon. Forrest Wickman of Slate echoed this sentiment, observing that “as a British immigrant, John Oliver has often demonstrated a knack for bringing fresh eyes to America’s absurdities. Kyle Whitmire of AL.com, an Alabama news website, captured the essence of this commentary with his proclamation that Oliver’s video “should be required viewing in pretty much any high school civics class.”
What revelation did Oliver present that could have such a powerful effect? Simply this: that although our judges “occupy an exalted position in American life,” to use Oliver’s own words, many of our jurists act no better than common politicians. This is all well and good on its own, but then Oliver goes on to say that America shouldn’t be electing its judges at all.
That is one step too far.
The first problem with this argument becomes apparent as soon as Oliver presents it: He never proves that judicial elections are responsible for the main problems he identifies. After explaining how Alabama Chief Justice Roy Moore is objectively wrong that the Supreme Court doesn’t have the authority to trump state courts (“that’s basically its job”), Oliver immediately blames Moore’s rise to the bench on the fact that “like 85 percent of state judges in America, he was elected.”
Because this is the last time he focuses on Moore in that segment, Oliver’s assertion that men like Moore—who has promised to block same-sex marriages in Alabama despite higher court mandate—rise to power because of elections is never substantiated. Indeed, upon further scrutiny, it becomes rather confusing: Is he implying that a judge appointed by politicians would be more likely to understand the Constitution than an elected one? Does he believe the electorate is more likely to anoint a judge with anti-gay prejudices than an executive and legislature? Is he implying that Moore’s election was somehow corrupt?
It is a bad sign that Oliver raises so many unanswered questions before his argument has moved past its first case-in-point, and the pattern of incomplete reasoning continues for the rest of the broadcast. He rattles off wonky statistics (“Thirty-nine states hold elections for judges and America is virtually alone in doing this”), analyzes how campaign fundraising can cause serious conflicts of interest (e.g., judges being more likely to rule in favor of contributors), and showcases a number of egregiously pandering, gimmicky, and/or dishonest campaign commercials. After briefly noting that appointing judges has imperfections of its own, he concludes by telling his viewers that “if we’re going to keep electing judges, we may have to alter our idea of what justice is.”
Again, Oliver’s reasoning is flawed because he doesn’t prove that this type of corruption is inextricably connected to the practice of electing judges. As such, his thesis is weakened by the fact that many infamous judicial scandals throughout American history have involved appointed judges; examples from the last few years include G. Thomas Porteous Jr. of Louisiana, Samuel B. Kent of Texas, and Federal District Judge Jack Camp.
It also overlooks the frequency with which blatant conflicts of interest influence judges as high up as the Supreme Court. Justices Antonin Scalia and Clarence Thomas were heavily criticized for participating in a lavish political retreat hosted by billionaire conservative activist Charles Koch despite his opposition to campaign finance reform, which was under consideration in the landmark Citizens United ruling (Scalia and Thomas voted as Koch would have wanted them to). One year later, Thomas refused to recuse himself when Obamacare reached the nation’s highest bench, even though his wife was a paid lobbyist for interest groups that actively opposed health care reform (Thomas voted to overturn the bill).
Even when Oliver does identify a problem that is clearly linked to judicial elections, his claim still buckles upon closer inspection. Although Oliver is rightly horrified that judges are statistically more likely to vote against a criminal defendants’ appeal during election season, this isn’t entirely dissimilar from how appointed judges will misuse their power by attempting to shape electoral politics. The Supreme Court’s decision to award the 2000 presidential election to the Republican candidate in Bush v. Gore was so transparently partisan that Justice John Paul Stevens wrote in his dissent that “although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Later, when Chief Justice John Roberts joined the four court liberals in upholding Obamacare, multiple sources reported that he was motivated not only because he felt the individual mandate was constitutionally sound (a position on which 19 of 21 constitutional scholars across political affiliations agreed), but out of concern that the conservative judges opposing the law were acting out of partisan rather than jurisprudential considerations.
None of this is meant to imply that Oliver was wrong for being outraged at the corruption and incompetence that run rampant in the American judicial system today. That said, as the above examples demonstrate, there are a number of root causes behind this problem. Foremost among them is the inordinate influence of money in every phase of our political process, including not only the purchasing of influence through election contributions but also through lobbying groups and political action committees.
In addition to that, there is the simple fact that judges appointed by politicians are just as likely to allow political considerations to unduly influence their decisions as those who have reelection campaigns to worry about. While the immediate incentives differ somewhat between a judge merely aiming to get reelected and one who angling to satisfy his or her partisan supporters, both pervert the notion of a blind and fair justice with their rulings.
The most important policy prescription for addressing this is comprehensive campaign finance reform. To do so, we must make it illegal for lawyers to donate to a judge’s campaign, while also barring judges from ruling on cases in which election fundraising considerations might cause a conflict of interest. Over time, however, Americans should also transition to providing publicly financed political campaigns for judges, so that an even playing field will remove the disproportionate power of big money over the candidates. Although these steps won’t entirely eliminate partisanship and other unfair bias among judges, they would certainly go a long way toward helping out.
Of course, the law can only do so much to address this type of crisis. The other part of the solution must be cultural rather than legal or political, and to its enormous credit, Oliver’s segment had the right idea on that front by raising awareness about the need for a higher standard of integrity among our judges. By oversimplifying the cause of judicial corruption by blaming it on elections, however, Oliver misdiagnosed the illness even as he performed a public service by identifying many of its symptoms.
Screengrab via HBO/YouTube