Archive for October, 2010
The “virus” of big special interest group spending and nasty attack ads in judicial elections has spread to retention (up-or-down) elections this year, a New York Times editorial warns in calling urgently for fundamental reform.
The editorial, headlined “Judges and Money,” decries the trend as “especially troubling because retention ballots were supposed to limit politicization by sparing sitting judges from having to compete in regular multicandidate contests.”
A retention election in Illinois is the editorial’s case-in-point. Justice Thomas Kilbride is the target of a fierce ouster campaign (see Gavel Grab for earlier posts) in which both sides have raised a combined $3.1 million.
The judge has provoked fury from big business and insurance interests over his vote siding with a court majority against limits on medical malpractice claims. The opposition ads are “particularly noxious,” and the judge is “unfairly” portrayed along the way as soft on crime, according to the editorial.
It concludes with support for Justice Kilbride’s retention and also an eye to more far-reaching action:
“[T]he huge amounts of money in this campaign and others around the country are doing huge damage to the courts’ reputation for impartiality — and underscores the urgent need for basic reforms.
“States that hold judicial elections must adopt public financing as well as strict rules that bar judges from sitting on cases involving major financial supporters.”
Detractors of retired Justice Sandra Day O’Connor have attacked her in a “drive-by political hit,” but it won’t silence her advocacy for a better way to pick states judges than through elections, Justice at Stake Executive Director Bert Brandenburg writes today in a Slate commentary.
“The immediate goal is to shut her up. The broader goals are more ominous,” Brandenburg says about critics’ questioning of Justice O’Connor’s role since a telemarketing mistake recently dialed robocalls to 50,000 homes in Nevada at 1 a.m.
The calls included a recording of Justice O’Connor supporting a vote for merit-based selection of judges and high court justices in Nevada. The retired Supreme Court justice apologized and said she did not authorize use of the recording (see Gavel Grab).
Brandenburg writes that relevant federal ethics rules “explicitly permit and encourage involvement in activities concerning the law, the legal system, and the administration of justice.”
He goes further to decry a “new wave of high-stakes judge-phobia,” including an impeachment threat against Chief Justice John Roberts. Brandenburg concludes:
“Sandra Day O’Connor will be fine. Her reputation for toughness and honesty is too strong for a drive-by political hit to tear her down. This episode ought to give her more reason to warn how politics is undermining the rule of law.
“To be sure, judges who speak up have to walk a fine line and be ready to consider recusing themselves when a case overlaps with a cause. The real concern here, however, is intimidation. We need judges in our public debates, because no on else can tell us what’s going on from the inside of the courts.
“In fact, the political mugging of Justice O’Connor reinforces how hardball politics can undermine efforts to conduct a substantive debate over selecting judges.”
Justice O’Connor has traveled around the country to promote her civics concerns. She has made a top priority of promoting merit selection/retention election-based systems for choosing state judges, while voicing concern about the threat posed by rising special interest group spending in judicial campaigns (see Gavel Grab). She also has continued to hear cases as a part-time federal appeals judge.
Spending on state Supreme Court campaign TV advertising has surged nationally in the final approach to Election Day, with $3.3 million spent in the week ending Oct. 27, according to a report today by the Justice at Stake Campaign and the Brennan Center for Justice.
“The lion’s share of TV spending in judicial campaigns takes place just before Election Day, and over the past week there has been a dramatic increase in the volume of TV ads being run in judicial elections across the country,” said Adam Skaggs, Counsel with the Brennan Center. It is a Justice at Stake partner.
“Many of these spots are mudslinging attack ads by candidates and outside special interests which have been widely denounced as slanderous and misleading at best,” he added.
The recent TV ad binge has raised overall ad spending to nearly $13 million for the 2009-10 election cycle. In every major state except Illinois, business and conservative groups were outspending lawyers and unions.
The last non-presidential election cycle, in 2005-2006, saw about $16 million in TV ad spending.
About $4.3 million overall has been spent on retention (up-or-down) elections so far in 2010, according to the report by the two nonpartisan reform groups. That sum was nearly double the $2.2 million spent in all retention elections national for the entire past decade, as Justice at Stake and co-authors documented in “The New Politics of Judicial Elections 2000-2009: Decade of Change.” Read more
Voters in 10 states will be asked to decide on a range of court-related ballot measures affecting judicial selection, court structure, and bail qualifications, among other issues, on Election Day.
Gavel Grab has reported extensively on a ballot initiative in Nevada for merit-based selection of judges and high-court justices. That initiative and others on state ballots are detailed in a report from the National Center for State Courts, which is available by clicking here. The center is a Justice at Stake partner.
FactCheck.org has branded “Mudfest 2010″ some of the most questionable — and false or misleading — advertising attacks on incumbent state justices launched in this year’s election season.
FactCheck.org is a nonpartisan group that examines campaign ads, and it is a project of the Annenberg Public Policy Center at the University of Pennsylvania.
In its report, the group scrutinizes in detail attack ads from one competitive election, in Michigan, and two retention elections, in Illinois and Iowa, and delivers these conclusions:
MICHIGAN: A Democratic ad “falsely accuses” Justice Robert Young, a Republican, of ruling that “Michigan citizens cannot hold [corporations] accountable when they pollute our lakes or rivers.” That’s not the case, FactCheck.org states, because “any citizen directly affected by environmental harm can still sue.”
ILLINOIS: Justice Thomas Kilbride is portrayed as pro-criminal in an ad by the business-backed Illinois Civil Justice League, and he is claimed to hold the “worst public safety rating” on the court. But the ad is “based on a study using questionable methodology and funded by the group itself,” FactCheck.org says in an analysis entitled, “Cherry-Picking Season in Illinois.”
IOWA: In this heated battleground over a state Supreme Court decision legalizing same-sex marriage, an ad accuses three justices of “being “liberal,” “out of control” and “ignoring the will of voters.” But hold on, says FactCheck.org, the decision was unanimous and was written by an appointee of a Republican governor, and moreover, “‘ignoring the will of voters’ is exactly what justices are called on to do.”
By the way, FactCheck.org notes, most polls have founds Iowans closely split on the issue.
You can view the ads at Justice at Stake’s Judicial Elections 2010 page.
Several heated retention (up-or-down) elections for state judges have sparked widespread attention this year, but until now, Gavel Grab had overlooked an effort to oust Alaska Justice Dana Fabe.
Justice Fabe has upheld the legality of abortion and has drawn stern opposition from anti-abortion activists, who label her an activist judge, according to an Anchorage Daily News editorial. The editorial stands behind a vote for her retention and for judicial independence:
“The purpose of the retention process is to allow the removal of unfit judges. The purpose is not to allow the removal of judges because a decision in a given case has disappointed or angered an interest group.”
“If we allow litigants to remove judges simply because they disagree with their rulings, we all have reason to fear for justice in Alaska.”
These other elections around the country were making news.
IOWA: Local and national leaders of a vigorous campaign to oust three state Supreme Court justices over a ruling that legalized same-sex marriage say Iowa represents the first skirmish in a large-scale struggle over gay rights nationwide, according to an Iowa Independent article.
ALABAMA: The original source of a $100,000 contribution to the campaign of Alabama Justice Tom Parker is cloaked in secrecy through a state campaign finance provision that critics judge far too lax, according to a Mobile Press-Register article.
For other election news, check out Justice at Stake’s Judicial Elections 2010 page.
How can public confidence in the impartiality of the Supreme Court be protected if the high court reviews a controversial federal law that is vigorously opposed by a justice’s spouse?
It’s more than a hypothetical question, law professor Steven Lubet of Northwestern University maintains in a Chicago Tribune commentary that focuses on Justice Clarence Thomas and his wife, Virginia Thomas, who heads a conservative nonprofit organization called Liberty Central (see Gavel Grab). “Let the justices be the judge,” is the headline, and it is Lubet’s answer.
The group’s website has called for repeal of “ObamaCare,” and has described the healthcare overhaul as “tyranny.” Lubet characterizes Virginia Thomas as a leading foe of the new health law. When the court is asked to review the law’s constitutionality, Justice Thomas’s possible disqualification in the case would be up to him alone–and would be very controversial, Lubet writes. The professor’s proposal:
“In that fraught atmosphere, public confidence would be best served if the entire Supreme Court were to make the decision on Thomas’ disqualification. It would be irresponsible to leave recusal completely to the discretion of the one man most likely to be swayed by competing considerations of duty and affection.”
In the Wall Street Journal’s Law Blog, Ashby Jones concurs, saying, “Lubet’s argument makes some sense: the current rule seems completely ineffectual. Why not have the parties submit briefings in cases like this — and then have the entire court rule?”
These other elections around the country were making news.
CALIFORNIA: Campaigning for a Superior Court judgeship in San Francisco “has the city’s legal community fearing that a new level of partisan politics has risen in the judicial system,” according to a Wall Street Journal article. Combined, the two candidates say they have spent about half a million dollars on the race.
While a recent report co-authored by Justice at Stake highlighted soaring judicial campaign expenditures nationwide, the most politicized contests typically are in the higher branches of the judiciary, said Adam Skaggs of the Brennan Center for Justice, a JAS partner.
NEVADA: When a judicial candidate appeared in a campaign commercial wearing judicial robes from a former post, he didn’t violate ethics rules, the Nevada Standing Committee on Judicial Ethics and Election Practices ruled, according to a Las Vegas Review-Journal article.
WASHINGTON: State Supreme Court Justice Richard Sanders and candidate Charlie Wiggins sparred on a newspaper editorial withdrawing its backing of Justice Sanders, due to his recent statement that blacks are overrepresented in the prison population because they are responsible for a disproportionate number of crimes, the Seattle Times reported.
Judge Sharon Keller, Texas’ top criminal court judge, recently said she felt “vindicated” by a special three-judge panel’s dismissal of an earlier reprimand against her (see Gavel Grab).
But are her trials over?
This week, the executive director of the State Commission on Judicial Conduct and its special counsel asked the special panel to review its dismissal of the reprimand. They disagreed with the panel’s legal conclusions, according to a Houston Chronicle article.
Several days before that development, the Texas Tribune posted video of an interview with Judge Keller, which can be viewed above. “The idea that I don’t care about defendants, or indigent defense, is ridiculous,” she said.
Transcripts from a conference on state judicial independence, featuring retired Supreme Court Justice Sandra Day O’Connor, Wisconsin Chief Justice Shirley Abrahamson, Executive Director Bert Brandenburg of Justice at Stake and others, are now available by clicking here for an online archive of The Seattle University Law Review.
Visitors to the online archive may read Justice O’Connor’s keynote address, transcripts of the discussion and related articles. The conference was held in September 2009 and was sponsored by the Seattle University School of Law.