Formally launched on February 14, 2002, Justice At Stake (JAS) describes itself as a “non-partisan, judicial watchdog group” that works to “keep state and federal courts fair and impartial” by purging them of “politics and special interests.”
According to JAS, the biggest threat to judicial impartiality is the fact that judges are elected by the general public in 39 states, meaning that candidates for those judgeships must essentially “dial for dollars”—i.e., solicit large sums of money for their campaigns—from the same people “who appear before them in court.” Warning that such a practice renders judges prone to giving favorable treatment to their donors, JAS recommends that all judicial campaigns be funded by public, not private, money.
Better still, JAS suggests, would be a system where judges are not elected but instead are appointed (or are recommended for appointment) by nonpartisan, independent commissions in a process known as “merit selection.” Pushing for the implementation of such a system one state at a time, JAS typically begins its efforts in each targeted state by financing public-opinion polls purporting to show that a majority of citizens therein believe that private campaign contributions compromise judicial fairness. Next, the organization uses these poll findings to generate media coverage and financial support for an artificial “grassroots” campaign that recruits all manner of activists, academic “experts,” and nonprofit foundations to join the chorus advocating merit selection and demonizing opponents of this idea as agents of corruption. Finally, JAS lobbyists push for legislation or a constitutional amendment to make merit selection the law of the state.
To date, JAS has never presented any empirical evidence to support its theory that appointed judges are superior to elected judges. In August 2007, that theory was punctured by a major study which examined the 30,000+ decisions that all 408 high-court judges in the U.S. had rendered over a recent three-year period. The researchers not only found “little empirical evidence” for the notion that appointed judges are better than their elected counterparts, but also concluded that “judges subject to partisan election have the highest [degree of] independence.”
Merit-selection commissions of the type favored by JAS are typically controlled by legal elites—often trial lawyers—who are wholly unaccountable to the American public. As of 2010 in Tennessee, for instance, 15 of the Judicial Nominating Commission's 17 members were lawyers who made all their decisions in secret, prompting longtime Tennessee trial judge Dale Workman to note that “there is less politics in almost any other method.” Vanderbilt University Law School professor Brian Fitzpatrick observed that “methods of judicial selection like the Tennessee Plan do not take politics out of the selection process so much as substitute one group's politics (the public at large) with another's (the special lawyer's organizations).” Similarly, University of Kansas law professor Stephen Ware declared that the merit-selection system in Missouri, where 20 of the previous 21 nominees to the state Supreme Court had either been Democratic contributors or members of the state trial-lawyers association, was “the most elitist (and least democratic)” method for selecting judges anywhere in the U.S.
Another major concern of JAS is the American Bar Association's requirement that judges recuse themselves from cases where their “impartiality might reasonably be questioned.” By JAS's calculus, “stronger recusal rules are needed today” because “unprecedented levels of campaign cash are being spent in state judicial elections by parties who appear in court.” The organization's goal is to make it easier for nebulous, highly subjective standards such as “appearance of impropriety” or “appearance of bias” to prevent elected judges from presiding over certain cases.
JAS also takes firm positions regarding a number of additional issues of political import:
“Court-stripping”: JAS condemns this practice, which refers to the removal—usually by legislative or executive action—of specific cases (or types of cases) from a court's jurisdiction. According to JAS, this “prevents courts from playing their vital role in … protecting individual rights and ensuring that other branches of government uphold the law and Constitution.” Particularly objectionable to JAS was the Military Commission Act of 2006, which barred federal courts from reviewing Guantanamo detainee cases under the writ of habeas corpus.
Judicial Nominations: To eliminate the “white-hot partisan bickering” that has “surrounded too many federal court nominations,” JAS proposes that the American Bar Association identify a pool of highly qualified judges, from among whom federal nominees could then be selected.
Immigration: JAS contends that because the federal government “has cracked down on illegal immigration” since 9/11, the “ability of courts to protect individual rights” has been eroded. The organization especially abhors the Real ID Act of 2005, which made it more difficult for illegals to obtain false identification cards and facilitated the deportation of aliens involved in terrorist activity.