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January 01, 2012

Judicial Elections Justice for Sale?

by Bert Brandenburg

For more than a decade, America’s courts have come under unprecedented attack in states that hold judicial elections. Partisans and special interests have organized aggressive efforts to use elections to tilt the scales of justice in their favor. As a result, many Americans fear that justice is for sale.

Here is a summary of the most worrisome trends.

Special-Interest Money

Judicial campaign fund-raising has soared, from $83.3 million in 1990–99 to $206.9 million in 2000–09. James Sample, Adam Skaggs, Jonathan Blitzer & Linda Casey, New Politics of Judicial Elections, 2000–2009: Decade of Change (Charles Hall, ed. 2010), [hereinafter Decade of Change]. Judicial candidates raised money extensively from parties who may appear before themSpecial-interest “super-spenders” played a central role in the decade’s surge. In twenty-nine contested elections, the top five super-spenders invested an average of $473,000 each, compared to an average of $850 given by all other contributors. Id.

By the 2009–10 election cycle, noncandidate groups poured in nearly 30 percent of all money spent to elect high court justices, far greater than the 18 percent of total spending by outside groups four years earlier. Adam Skaggs, Maria da Silva, Linda Casey & Charles Hall, New Politics of Judicial Elections, 2009–10 (Charles Hall, ed. 2011), [hereinafter New Politics of Judicial Elections].

TV Advertising

Parallel to the money explosion, the airing of ugly, costly TV ads became a prerequisite to winning a state supreme court seat. From 2000–09, $93.6 million was spent on air time in high court contests. Decade of Change, supra. The subsequent 2009–10 biennium saw the costliest nonpresidential election cycle for TV spending in history, at $16.8 million.

The role of advertising by noncandidate groups accounted for 42 percent of all TV ad spending between 2000 and 2009—and for most of the negative advertising. Id.

In 2008, for example, a Michigan Democratic Party ad questionably portrayed Chief Justice Cliff Taylor as sleeping on the bench. In 2010, a pro-business coalition seeking to oust Illinois Justice Thomas Kilbride aired an ad in which actors posed as convicted thugs, recounting their grisly crimes and portraying Kilbride as taking their side. New Politics of Judicial Elections, supra.

Retention Elections

Justice Kilbride raised $2.8 million to keep his seat in a retention election, illustrating another worrisome trend. Id. Throughout the 2000–09 decade, retention elections, in which voters choose “yes” or “no” to keep an incumbent in office, had escaped the overall spending surge. That changed abruptly in 2010.

The $3.48 million Illinois race was the second costliest retention election ever, and the costliest in a generation. A total of nearly $4.9 million was spent in four states: Illinois, Iowa, Alaska, and Colorado. That more than doubled the $2.2 million spent in all high court retention elections nationally for the entire previous decade.

Iowa’s retention elections sent shockwaves around the nation. Three state justices were swept from office by voters angry over a decision permitting same-sex marriage. National anti-gay groups provided most of the ouster campaign’s nearly $1 million in financing. Social conservatives hoped the election would deliver a chilling message to judges in all states, not just Iowa.

Growing awareness of the threat to fair courts also brought positives.

In 2009, the U.S. Supreme Court intervened when runaway spending on a West Virginia judicial election spun out of control. In Caperton v. Massey, 129 S.Ct. 2252 (2009), the Court disqualified a justice from a case involving a coal company whose chief executive had spent millions to help elect him. The Court said there was a “serious risk of actual bias.” Decade of Change, supra.

Caperton moved the issue of recusal to the national stage and created incentives for states to make sure their recusal procedures addressed the new politics of judicial elections. Since Caperton, however, progress on recusal reform has been slow.

Moreover, the public, the media, and the legal community have taken note and demanded reforms to restore trust in the courts. Since 2001, nationwide polls have shown that three in four Americans believe campaign contributions influence courtroom decisions. Resource Overview, Justice at Stake Campaign, Even 46 percent of state judges believe election spending affects judges’ rulings.

In a 2011 poll commissioned by Justice at Stake, 93 percent of voters said judges should not hear cases involving major financial supporters, and 84 percent said they believe all contributions to judicial candidates should be “quickly disclosed and posted to a website.” 20/20 Insight LLC, National Registered Voters Frequency Questionnaire (Oct. 10–11, 2011), Americans support the Constitution’s vision of courts free from outside influence.

But a continued challenge by special interests threatens to destabilize fair and impartial courts.

“The crisis of confidence in the impartiality of the judiciary is real and growing,” Justice Sandra Day O’Connor wrote in 2010. Sandra Day O’Connor, Forward, in Decade of Change, supra. “Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”

In 2011, Iowa Chief Justice Mark Cady delivered his own grim warning. He addressed legislators on the State of Iowa’s courts, but his message was intended for courts across America. “This branch of government,” Chief Justice Cady said, “is under attack.” New Politics of Judicial Elections, supra.

Bert Brandenburg is executive director of Justice at Stake, a nonpartisan campaign to protect courts from political and special-interest influence.