For Release Sunday, August 29, 2010
© 2010 Washington Post Writers Group
It’s tough to underestimate the peril to impartial American justice that’s been highlighted in a new report on the big-time campaign money flowing into elections for justices on state supreme courts.
Total spending on the campaigns doubled in the past decade, from $83 million in the 1990s to $207 million in 2000-2009, according the report from three nonpartisan groups — the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics.
Equally alarming, those pushing the spending — corporations on one side, trial lawyers on the other — are using shell organizations such as the American Justice Partnership and the Alabama Civil Justice Reform Committee to keep their involvement hidden.
Increasingly, the special interest groups are using questionnaires to pressure judges into signaling, during campaigns, how they’ll make courtroom decisions. And there’s been a surge of nasty and costly television ads, mimicking the ugliness that pollutes so much television political advertising today.
The situation has become so serious that recently retired Justice Sandra Day O’Connor, in a preface to the new report, counsels Americans to remember the imperative of a “fair impartial and independent” judicial system. “Partisan infighting and hardball politics,” she notes, could well “erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.”
Political operative Karl Rove was an early player in pushing big-time money into judicial races, the new report indicates, noting that he acted as the “mastermind” of a political turnaround in the late 1980s and early 1990s of the Texas Supreme Court, from a Democratic body with cozy relationships with trial lawyers to an all-Republican panel that took a hard line on injury and product liability cases.
Between 2000 and 2008, business and conservative groups funding and organizing state supreme court races succeeded in shifting the makeup of previously of trial lawyer- and union-friendly supreme courts in Illinois, Michigan, Mississippi, Ohio, Wisconsin and West Virginia.
Key players in the effort have been top leaders of such firms as Home Depot, insurance giant AIG, Chrysler and big tobacco, plus such leading business groups as the U.S. Chamber of Commerce and the National Association of Manufacturers. One political supporter, the report notes, has been Bob Perry, the real estate magnate who financed the Swift Boat Veterans for Truth Campaign in the 2004 presidential election.
Trial lawyers and unions have responded by funneling money into state-level interest groups and Democratic party organizations, “gradually clawing back a little of their lost turf,” the new report indicates.
But the Supreme Court’s recent decision in “Citizens United v. Federal Election Commission,” overruling longstanding bans on election spending from corporate and union treasuries, will loosen restraints on judicial elections and likely benefit the corporate world with its superior and immense financial resources.
We face a “perilous time for fair courts,” says Bert Brandenburg of the Justice at Stake Campaign, as special interests work to dismantle spending limits, eliminate merit selection of judges, and strive to keep campaign spending secret by assaulting disclosure laws.
The “good news,” as it were, is that the very worst abuses have been concentrated in a handful of states, especially Alabama, Pennsylvania, Ohio, Illinois, Texas, Michigan and Mississippi. Polling shows strong public support for such reforms as public financing of judicial races and obliging judges to recuse themselves in cases where they have any personal stake. Judicial election reform efforts have picked up recently in North Carolina, New Mexico and West Virginia, with Wisconsin enacting public financing of state supreme court elections.
Lurking behind all this is the thorny question: Why (as 22 states do) elect judges at all? Why not nonpartisan panels or other forms of merit selection? How many of us, as voters, have any idea of the real qualifications of judges?
For that matter, what are we ordinary citizens doing electing — as we do in many states — auditors, coroners, surveyors, sheriffs, insurance commissioners, school superintendents, controllers, probate judges, tax assessors, orphans’ court judges, recorders of deeds and wills?
What were our ancestors ever thinking of when they made those posts elective? Faced by yard-long ballots for these miscellaneous posts, we mark ballots blindly or not at all.
It’s essential in our democracy to have popular elections for president, Congress, governors, mayors, city and county councils. One can even argue it’s a good idea to elect state attorneys general or secretaries of state (both good “step-up” jobs to governor).
But government functions best with a limited number of clearly accountable, top officials. And each of us wants to know that if we, or groups or causes we believe in, are in trouble with the law, that the justice meted will be objective, fair, and free of taint of monied influence. Popular election of judges undermines that most fundamental right.
Neal Peirce’s e-mail is npeirce@citistates.com.
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2 Comments
Leave county sheriffs out of this! The sheriff is one elected police official who can stop unconstitutional statutes and federal agency actions. May be more than ever the people require their own elected representative in local law enforcement.
Mr. Pierce,
Thank you for your column on judicial elections. I agree with you 1000% and I have the experience needed to do that.
I am 77 years old and, after graduating from the U. of Chicago Law School, practiced law in Seattle for over 40 years before retiring. I had experiences at the largest law firm in the Northwest for five years, Legal Aid for three years, assistant state attorney general for two years and a firm principally representing public power providers and a major cooperative health care provider for most of the remaining years.
When I stated practicing law in 1961, to determine what a court would do in my case I researched the facts, federal and Washington State Constitutions, federal and Washington statutes and relevant case law. In my later years the first thing I researched was the major campaign contributors to, and political supporters of, the judge I expect to hear my case, not the relevant law. Sadly, the world can predict our court decisions now on that basis.
I suggest you compare our judicial systems, their results and their reputation to those in the major European countries, which, I understand, appoint their judges based on skills to judge without outside political control.
I have traveled in foreign countries in Europe over the last 55 years and have family in Northern Ireland; and America is rapidly losing the respect and moral leadership it once had, and deservedly so.
Bert Metzger Jr.