Gavel Grab

With voters casting ballots on judges in 32 states this year, a New York Times editorial strongly warns about the dangers of “money-soaked [judicial] elections:”

“Elections turn judges into politicians, and the need to raise money to finance ever more expensive campaigns makes the judiciary more vulnerable to improper influence by donors.”

“State courts decide 95 percent of the country’s legal cases. They are damaged by money-soaked elections. The evidence mounts that top state judges should be picked and appointed through merit selection, not elected.”

The editorial cites a recent Center for American Progress report as proof that “the harm to justice is well documented” in six of the highest-spending judicial election states, of Alabama, Michigan, Illinois, Ohio, Pennsylvania and Texas.

The think tank’s report (see Gavel Grab) said that   in 403 cases from 2000 to 2010 where an individual sued a corporation in those states, “the courts ruled in favor of the corporations 71 percent of the time.” It added, “The high courts that have seen the most campaign spending are much more likely to rule in favor of big businesses and against individuals who have been injured, scammed, or subjected to discrimination.”

The editorial also relied on data from “The New Politics of Judicial Elections 2009-10,” compiled by Justice at Stake, the Brennan Center for Justice, and the National Institute on Read more

A study group led by Oregon Supreme Court Chief Justice Paul De Muniz, who is retiring, will begin examining this month possible reforms in the way judges are chosen for the state’s two highest courts.

In a proposal for the work group in 2011, Chief Justice De Muniz wrote, “Nationally, the increasing politicization of state judicial elections puts at risk judicial independence and erodes public confidence in the impartiality of judicial decisions. More recent judicial election campaigns in Oregon have exemplified the growing trend for judicial elections to become more and more affected by partisan politics.”

According to a column in The Oregonian by Susan Nielsen, reform efforts in Oregon have not gotten traction in the past decades, but “[u]gly battles in Iowa and other states, combined with an explosion in campaign spending, have changed the game.” Voters removed three state Supreme Court justices in Iowa in 2010, in retaliation for a court ruling that permitted same-sex marriages.

One reform suggestion that has been floated is for Oregon to move to what is known as The Missouri Plan, for a proven appointment-and-retention system of judicial elections there.

On a web site for the study group, reading materials for the first meeting included a report co-authored by Justice at Stake and partner groups entitled “The New Politics of Judicial Elections 2009-10.” The report found that independent expenditures by special interest groups accounted for nearly 30 percent of the money spent on state judicial elections during the two-year period, far higher than four years earlier (see Gavel Grab).

In North Carolina, meanwhile, a WFAE radio report explained how judicial elections work in the Tarheel State and questions raised about the process.

The Florida League of Women Voters has voiced strong concerns about legislators’ launching assaults on fair and impartial courts, and a (Fort Myers) News-Press editorial declared its agreement.

“Clearly, the independence of the judiciary is an essential part of the successful balance of power and strength of our democracy,” league president Deirdre McNabb said, according to the editorial. “Citizens should be jumping out of their chairs with concern when the Legislature oversteps and threatens the balance of power and the independence of the judiciary in Florida.”

“We agree,” the editorial concurred. “Urge our elected leaders to uphold the independence and authority of the judiciary.”

Florida’s state Supreme Court has frustrated the legislature with a number of its decisions, including rulings that favored Democratic presidential candidate Al Gore in 2000, in the Terry Schiavo “right-to-life” case and removing from the 2010 voter several initiatives that had been introduced legislatively.

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The Washington Post, in a front-page article on Friday, spotlights surging spending by outside special interest groups in judicial elections nationwide, and prominently cites Justice at Stake and JAS partner groups.

The article is headlined, “Super PACs, donors turn sights on judicial branch.” The Post examines a drive to oust three state Supreme Court justices in Florida retention elections this year, and their beginning to campaign in response, in identifying a larger trend:

“While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.”

Judicial races are attractive to donors because of their relative obscurity and in many cases, a lack of public scrutiny, according to the article, and in a new trend, “The universe of big donors has grown smaller and more concentrated.”

“It’s the single best investment in American politics,” said Charles Hall, spokesman for Justice at Stake. “A few big spenders can really have an outsize effect.”

Explained Roy Schotland, a Georgetown University law professor and expert on judicial elections, “Outside forces are becoming a bigger deal.”He added, “We’re seeing more takeover of the races from the outside.”

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In 2010, spending on campaigns for two Michigan Supreme Court seats led the nation’s judicial elections. This year, with three Supreme Court seats in contention, may bring the state’s most expensive judicial elections ever, a Michigan Radio report suggests.

And that big spending trend has significant costs, reporter Lester Graham says:

“Lots of campaign money is being spent to influence the election of Michigan Supreme Court justices. That makes people wonder how judges can be impartial. After  all, some of the justices owe their position on the bench to people who have given them millions of dollars.”

“It isn’t just the appearance of impropriety, this money does have influence. Common sense tells you it does. I’ve been there,” former Supreme Court Justice Betty Weaver told Michigan Radio.

Graham mentions ideas discussed by reforms to protect fair and impartial courts. They include replacing judicial elections with appointment using non-partisan commissions, 24-hour campaign contribution disclosure requirements, and disclosure of all spending that benefits a judicial candidate.

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When three Iowa Supreme Court justices declined to raise money and actively campaign in the face of a well-funded ouster drive  over a controversial same-sex marriage ruling, the decision amounted to their “Waterloo,” and they were removed in a historic sweep.

But when an Illinois Supreme Court justice aggressively raised money and campaigned to save his seat in the face of a negative ouster campaign funded by a special-interest coalition, he triumphed.

This view of the high-profile Iowa and Illinois judicial retention elections in 2010 comes from scholar James Sample of Hofstra University School of Law.  In a draft law review article available online from the Social Science Research Network, Sample argues these elections will be used as playbooks for the future, and they raise hard questions about the impact on fair and impartial courts and about merit selection:

“The contrasting approaches in Iowa and Illinois, and the similarly contrasting results will, in this author’s view, become a self-fulfilling prophesy. Those who seek to unseat judges for self-interested, ideological and/or single-issue reasons will follow the playbooks of the retention opponents in both Iowa and Illinois. Judges and their supporters will—in some instances reluctantly, in others not—model their approaches on [Illinois] Chief Justice [Thomas] Kilbride’s.

“The contrasting scenarios leave open some empirically unanswerable questions. Did the Iowa justices’ principled stand not only cost them their jobs, but embolden retention opponents both locally and nationally prospectively? If so, will their principled stand—and it was surely that—actually undermine judicial independence over the longer haul? Could that passivity, sourced in concerns over the influence of money, actually have led Read more

Alabama Chief Justice Chuck Malone (photo) has boasted about the completely Republican makeup of his state’s Supreme Court in email reported by a sharply critical Eufala (Ala.) Tribune commentary. The column also cites the Justice at Stake Campaign.

“For the first time, we have a completely Republican Supreme Court and I am honored to be able to serve the people of Alabama as Chief Justice of that court and to ensure that the rule of law is upheld in our state,” Justice Malone wrote, according to Patrick Johnston’s commentary. Johnson’s column is entitled, “Why brag about a partisan court?”

Justice Malone was appointed by Gov. Robert Bentley last summer. As a result, Johnston remarks, “The Supreme Court of Alabama is as red as Tuscaloosa on a football Saturday. What does that say about the scales of justice?”

That a high court would be comprised of judges all of any political stripe is troubling, Johnston says, and the single-party composition of Alabama’s Supreme Court is even “more skewed” than the oft-criticized Ninth U.S. Circuit Court of Appeals.

The way that Alabama chooses its Supreme Court justices through partisan, contested elections is one example of how politics in Alabama is broken, Johnston contends.

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Three candidates in a GOP primary for chief justice of the Alabama Supreme Court have received campaign money from contrasting donor lists. One of the candidates has received $50,000 from an out-of-state lawyer affiliated with extremist groups.

According to a Birmingham News article, the candidates are Chief Justice Charles Malone; Mobile Circuit Court Judge Charlie Graddick; and Ray Moore, a former chief justice known as the “Ten Commandments judge.”

Justice Malone has drawn traditional campaign support, from business, insurance and corporate legal defense donors. Judge Graddick, in addition to typical GOP judicial candidate backers, has gotten support from plaintiff trial lawyers.

Moore, who was removed from his post in 2003 over a controversy involving the Ten Commandments monument that he installed in the Alabama Judicial Building, has drawn large contributions from Michael Peroutka, a past presidential candidate for the Constitution Party in 2004. Read more

In these other dispatches about fair and impartial courts:

• The Supreme Court is expected to hear an appeal to a Montana Supreme Court’s recent campaign finance decision, POLITICO has reported. In a 5-2 ruling in December, the Montana Supreme Court restored a century-old ban on direct corporate campaign spending on candidates and committees.
• An editorial in the Milwaukee Journal Sentinel said that state supreme court Justice Michael Gableman should have recused himself from cases involving a law firm he is alleged to have received free legal services from.
• Reporting on spending by judicial candidates in Alabama, Thomson Reuters News & Insight cites The New Politics of Judicial Elections 2009-10, a report co-authored by JAS.

The continuing shadow of Citizens United is at the center of several new stories on money in politics, including two very different articles on a Montana Supreme Court ruling that upheld its state ban on corporate election spending.

In Slate, legal commentator Dahlia Lithwick focuses on a sentence in the Citizens United ruling that increasingly seems at odds with reality:  Justice Anthony Kennedy’s contention that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

As Lithwick notes, that perception is rapidly crumbling, in a 2012 campaign season dominated by supposedly independent Super Pacs that in fact closely coordinate with candidates’ campaigns. Noting that the Montana opinion richly detailed the state’s history of “Copper Kings” buying elected judges and other officials, Lithwick wrote:

“Whereas Justice Kennedy’s opinion in Citizens United seemed to be rooted in the thin vapors of his own aspirational First Amendment thinking, the Montana Supreme Court fixed its focus on the actual corrupting influence of the groups suing to overturn the ban. … More fundamentally, the majority and one dissenter seem to understand perfectly how much the American people resent being lied to about the burning need for courts to step in to protect the oppressed voices of powerless corporate interests. As Judge Nelson wrote in dissent, “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress Read more