Gavel Grab

Groups Offer Contradicting Views on Term Limits for WI Justices

Advocacy groups continue weighing in on the proposal for a constitutional amendment, drafted by a Wisconsin State Bar panel, to limit state Supreme Court justices to a single 16-year term, instead of the current 10-year term with the potential for reelection. 

Billy Corriher, the associate director research for the Center for American Progress expressed his support of the amendment in an article Wednesday, saying that a term limit could curb partisanship and campaign spending from interest groups. “Wisconsin needs to think big in terms of reforming its judicial elections,” Corriher said, “and this proposed constitutional amendment could be just what it needs.”

However, the Cap Times reports that the Wisconsin Democracy Campaign—a Justice at Stake partner organization— has expressed misgivings about the measure. According to Mike McCabe, the organization’s executive director, limiting judges to one term could potentially drive up partisan vitriol and campaign spending from interest groups.

Read more about Wisconsin’s proposed constitutional amendment and the reactions to it on Gavel Grab.

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Updates from Wisconsin

With just two months until Wisconsin’s Supreme Court election, Chief Justice Shirley Abrahamson holds a big fund-raising edge over challenger Randy Koschnick, according to news reports.

According to the Daily Cardinal, Abrahamson raised over $800,000 by the end of 2008, while her Koschnick, a district judge, had raised $14,000. Koschnick said in news reports that he has raised closer to $50,000.

In a potentially more significant development, Wisconsin Manufacturers & Commerce group, along with two other groups that advertised heavily in the 2007 and 2008 campaigns,   announced that it will not advertise on behalf of Koschnick. According to the Milwaukee Journal Sentinel’s “All Politics” blog. WMC spent $1.7 in ads favoring Michael Gableman, who unseated then-Justice Louis    Butler  last spring, and $2.2 million the year before for the victorious Annette Ziegler.

In an interview with the Associated Press, Jim Haney, president of WMC, said the group would be very “passive” in this year’s election:

In an interview, Haney said WMC’s board of directors made the decision to play only a “passive role” after meeting with both candidates. He said the group’s only involvement in the race will be to share both campaigns’ literature with WMC’s members.

“Everybody was aware that we were very high-profile in the earlier races and whether that influenced their thinking, maybe that made them nervous or uncomfortable, I don’t know,” he said. “But collectively, they moved rather quickly to decide we’ll just play this information dissemination role this time.”

In an interview, Koschnick acknowledged that WMC’s decision was a setback for his campaign.  However, he found a silver lining:

“I’m only going to be able to control my own campaign,” Koschnick added. “I’m doing my best to get the Read more

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New Turn in Ohio: No 'R' or 'D' on Judicial Ballots

In a story that we have followed here at Gavel Grab, the Ohio Supreme Court has changed course, and will continue to bar  judicial candidates from declaring their political party during general elections. The decision came less than a month after the state Supreme Court revised the Ohio Judicial Code of Conduct to allow party labels on the ballot.

According to the Metro Blog of the Cleveland Plain-Dealer, the original decision to end the ban  came after a 19-member task force, responsible for aligning the Ohio Judicial Conduct Code with the 2008 ABA Model Code Revision, recommended this change.

A shroud of secrecy surrounds the court’s decision. According to the Plain Dealer:

Court spokesman Chris Davey on Tuesday said the court will not explain to the public why it held the secret deliberations after initially welcoming public input. He insisted the court did not bow to “any external communication.”

It is worth noting that this provision only affects the general election. Ohio judicial candidates must run in party-conducted  primary elections to be chosen for the general election ballot. 

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The American Academy of Arts and Sciences on Judicial Independence

.Yesterday, I was honored to participate in a program on judicial independence hosted by the American Academy of Arts and Sciences at the NYU Law School.  The program—the Academy’s first examining these issues—attracted 200-300 people, including many interested students.  Former New York Times Supreme Court reporter Linda Greenhouse moderated.

Justice Sandra Day O’Connor delivered opening remarks, reprising her concerns about growing pressure on judicial elections.  “It’s harder for a judge to be neutral if they think about the popularity of their opinions and who has donated to them,” she said.  “We can’t afford to have a justice system that’s perceived as corrupt, biased or unethical.”  She closed with a warning:  “Statutes and constitutions don’t protect judicial independence.  People do.”

Yale Law Professor Judith Resnik reviewed the evolution of the concept of strong and independent courts.  Her slide show began with an image of flaying of a corrupt judge in Gerard David’s 1498 diptych The Justice of Cambyses (pictured above) and similar cultural representations of judging as a high-risk occupation.  She showed how the notion of independent courts became enshrined in America’s founding documents, and how courthouse architecture can reinforce the cultural strength of the courts.

My own presentation touched on first reports of what happened in this year’s judicial elections: Supreme Court justices raising what probably will exceed $30 million, and $17 million or more in TV ads.  I touched on voter approval for merit selection in four different county referenda.  I also discussed how party-line voting ousted 22 experienced GOP judges in Texas this year, and 19 more two years ago.  As usual, when I showed some of the ads that ran this year, there were a lot of gasps in the audience

Georgetown Professor Viet Dinh discussed criticism of the courts, and the complicated task of distinguishing between fair critiques and inappropriate attacks.  “Illegitimate criticism is the majority of criticism we see today,” he said.  Valid criticism, he added, includes situations where a judge’s decision “steps so far out of bounds that he has failed the judicial oath,” perhaps “in response to external pressures.”  He lamented that “elites know how to criticize judges in ways that are effective in forcing them to change their behavior.”

The Academy , founded by John Adams, held the program to launch a new issue of it’s journal, Daedelus, that is devoted to judicial independence issues.  It includes contributions by the panelists and many other authors.  The issue was edited by Meryl Chertoff, Executive Director of the Sandra Day O’Connor Center on the State of the Judiciary.

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Defense Attorneys Wary of Judicial Election Trends

DRI, which calls itself “the voice of defense bar,” is made up of more than 22,000 corporate counsel and defense trial attorneys. (It is also a Justice at Stake partner.) Today, in its brand-new blog, “For the Defense,” DRI’s John Trimble writes that “no one can dispute that the rise of attack advertising in judicial elections and the growth of special interest spending from all sides of the political spectrum is threatening to seriously erode the public’s confidence in the judiciary.”

Trimble also cites a recent DRI report, Without Fear or Favor, where DRI’s judicial task force wrote:

Significant financial contributions to judicial campaigns tend to undermine the public’s confidence in the impartiality of judges. It is an axiom of all judicial ethical rules that judges are supposed to be fair and impartial. This means that they must make their rulings without fear of intimidation by any political party or group. And they must make their rulings without feeling that they are indebted to any person or group.

When lawyers and litigants make sizeable financial contributions to judges, it can undermine the judiciary’s institutional legitimacy. To the extent that the public is aware of such contributions, the research, polling, and interviewing done by the Task Force confirms that the public is less likely to have confidence in the impartiality of the judge. Furthermore, the existence of a political contribution provides the opportunity for critics of a judicial opinion to criticize the judge’s motives after an opinion has been issued on the basis that the judge was beholden to the contributor.

Such criticism further undermines public confidence in the impartiality of the judge’s opinion whether it is true or not.

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Money for Campaigns, Not for the Poor in Alabama

Judicial elections in Alabama have always caught the nation’s eye,  due to the enormous sums spent each campaign season.

In two recent Birmingham News articles, new Alabama State Bar President J. Mark White has offered an interesting new perspective on skewed priorities. He notes that more money is raised  in Alabama to elect a few Supreme Court justices than to provide legal counsel to low-income people in civil cases.

 The comparison is made in a July 20 profile on White, and in a July 23 editorial column. As the editorial notes, White has pledged:

To change the way Alabama selects judges, a reform he says is needed because our expensive, partisan elections have fueled a perception, rightly or wrongly, that justice is for sale.

To find a way to increase the money available for legal services for the poor. Alabama ranks behind every other state and even Puerto Rico in providing legal services to the poor, White said.

White offered one comparison that linked the issues and put the problem into shocking focus: In 2006, he said, 15 state judicial candidates spent more than $17 million on their campaigns. That same year, less than $7 million was spent on providing legal services for the poor in civil court.

In Alabama, all money for judicial elections and civil representation for the poor is raised through private contributions.

The American Bar Association’s president-elect, H. Thomas Wells Jr., also hails from Birmingham, and he too has voiced concerns about campaign spending in court elections. In a column published in September 2007, Wells issued a call for judicial selection reform.  

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Wisconsin Election Cost Sets Record

The Milwaukee Journal Sentinel reported yesterday that the most recent Supreme Court race in Wisconsin broke the previous record, with candidates spending just under six million dollars. 

Even more troubling than the ever increasing flow of money into the state’s judicial elections is the percentage that is spent by third-party groups that aren’t required to disclose their funding sources.  Of the nearly $6 million spent, $4.8 million was spent by special interest groups like “Wisconsin Manufacturers & Commerce,” the “Greater Wisconsin Committee,” the “Coalition for America’s Families” and “Club for Growth Wisconsin.”

Justice at Stake researched the judicial spending in Wisconsin and other Great Lakes States in our most recent report, “The New Politics of Judicial Elections in the Great Lakes States.”

Read the full story here, and read the full report on Wisconsin campaign costs, which was issued by the Wisconsin Democracy Campaign

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In Louisiana, a Course on Ethical Campaigning

In Louisiana, classes on ethical campaigning begin next week for anyone who hopes to remain a judge or is looking to become one. With elections quickly approaching, Louisiana will be holding seminars throughout the state on ethical campaign conduct. The class is open to all candidates for the bench and their campaign managers, according to a release sent out by Louisiana’s Judicial Campaign Oversight Committee.

Louisiana is not the only state seeking to insure that candidates campaign in ways that are consistent with their ethical duties if elected as judges. The National Ad Hoc Advisory Committee on Judicial Campaign Conduct,  sponsored  by the National Center for State Courts, helps states organize effective campaign conduct committees, which educate candidates and then serve as watchdogs during campaigns. The program also lists states that have oversight committees in place.

For more information on judicial campaign conduct committees, you can also see ABA Ensuring Judicial Independence.

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JAS Board Member Speaks Out on Judicial Elections

Chief Justice Thomas J. Moyer of Ohio was quoted in a Los Angeles Metropolitan News Enterprise article about judicial elections, “Witnesses Tell Panel Politics Threatens Judges’ Independence.”

The Chief Justice was quoted as saying that “What troubles voters is the growing need for contributions to judicial campaigns,” and “nearly every survey concludes three out of four people believe the need to raise campaign contributions affects the decisions of judges.”

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Equal time (after a fashion) here at Gavel Grab

Let it never be said that we here at Gavel Grab shy away from arguments that run contrary to some of our positions. James Gibson wrote a lengthy and fairly thoughtful article about judicial elections, called “Noisier, Nastier, Costlier – and Better.” His primary focus is whether or not the Republican Party of Minnesota v. White decision – and the resulting nasty political campaigns for judgeships – will ultimately reduce public confidence in the courts.

We’ve released multiple reports on judicial elections (to check them out, look here, here, or here). While Gibson agrees that contributions by third parties are negative, and reduce perceptions of judicial legitimacy, he’s less certain about negative advertising, or about judges publicly stating their positions on controversial legal issues.

Ultimately his argument, that nasty campaign ads serve educational purposes, glosses over the idea that they might also misinform. There also is an inherent danger in allowing judges to proclaim their stances on issues which may come before them-a danger that Gibson seems overly complacent about.

In our system of justice, equality before the law is the bedrock of our rights, and that’s why it’s inscribed above the entrance to our Supreme Court. While judicial rulings often affect public policy, judges are not policy-makers. Their job is to apply the law to the disputes that come before them.

For our system to work, judges must approach every case with no preconceived (let alone pre-announced) stances. When they announce on the campaign trail how they intend to rule on certain types of cases, long before facing the particular facts of a specific case, it is hard to see how that inspires public confidence in a fair and impartial court system.

In any event, give Gibson’s article a read, but make sure you’ve read our reports first!

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