|
IIn Wisconsin this past April, incumbent Justice Louis B. Butler Jr. lost his seat on the state Supreme Court to Republican-supported challenger Michael Gableman in a bitterly fought election backed by groups that spent at least $4 million on the contest.
"This was the most nasty, negative, demoralizing statewide election in Wisconsin history," says Jay Heck, executive director of the liberal advocacy group Common Cause in Wisconsin. Former Wisconsin Supreme Court Justice William Bablitch put it this way: "Right now, the impression of the people of the state is justice is for sale, and some are going to get a fairer shake than others."
The Wisconsin race cast a spotlight on what many see as a troublesome trend: judicial elections increasingly backed with contributions from groups with a stake in the outcome.
The phenomenon of electing judges is not new, and those who support judicial elections say they encourage accountability to voters and cast sunlight on the legal process. "I will defend our system of elected judges," Alabama Supreme Court Associate Justice Tom Parker said. "I certainly trust the voters more than politicians to select members of our judiciary."
But critics say the flow of special-interest money into judicial races has grown sharply since the mid-1990s and that it threatens the impartiality and fairness of the legal system. "We put cash in the courtrooms, and it's just wrong," former U.S. Supreme Court Justice Sandra Day O'Connor, a champion of judicial independence, told a conference this year.
Judicial candidates have been more inclined to express their opinions since the U.S. Supreme Court, in Minnesota Republican Party v. White (2002), ruled that a state law barring judicial candidates from discussing their views on disputed legal or political issues violated the First Amendment.
James Bopp, an Indiana attorney who won the case, said, "Voters need information on the judicial philosophy of the candidates. It takes campaigns and judicial free speech to ferret out judges that are prepared to legislate from the bench."
But Laura MacCleery, deputy director of the Democracy Program at the Brennan Center for Justice at the New York University School of Law, which tracks judicial campaigns, said, "We think judges should be more impartial and try to stay above the fray to conserve the strength — and appearance of strength — of the judiciary."
In recent years, judicial elections have been characterized not only by a broader display of candidates' views but also by money backing their campaigns.
James Sample, an attorney with the Brennan Center, wrote that "certain American values transcend partisan division. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice."
Thirty-nine states elect at least some of their judges in what Samples called "costly arms races." Twenty states besides Wisconsin will elect new Supreme Court justices this year, according to MacCleery.
A report by the center this year said that candidates for state supreme courts raised a total of $123 million between 2000 and 2004, a 67 percent increase over the amount raised between 1994 and 1998, and that 37 candidates passed the million-dollar threshold.
Median fundraising by candidates for state supreme courts reached a record $243,910 in 2006, according to a separate study by the Brennan Center and two other groups.
The money is coming from a variety of sources, including trial lawyers, organized labor and business. But MacCleery says that "90 percent is from business interests," adding, "they want to help put business-friendly judges on the courts."
The Brennan Center said that in 2006 business gave more than $2 to candidates for state supreme courts for every $1 donated by lawyers, and that independent committees aligned with business interests sharply outspent groups on the left. In addition, the center noted, pro-business groups accounted for 90 percent of independent spending on television ads in high-court races.
Among the groups most active in judicial elections has been the U.S. Chamber of Commerce, which in 2004 alone "got involved in 13 judicial races . . . and won 12," Sample wrote.
But Chamber CEO Thomas J. Donohue recently offered a defense of business' role in judicial elections, taking particular aim at trial lawyers' complaints about "interest-group politics" in state high-court races.
"[T]rial lawyers have controlled the election of state judges for decades by either controlling the process that vets judges for appointment or by providing most of the funding for judicial elections," he wrote.
Donohue went on to say that "trial lawyers pick the judges, and they usually pick them from within their own ranks. It shouldn't be a shocker that we're experiencing a litigation explosion. So some business leaders have decided to fight back and support candidates in state judicial elections. In effect they are saying that the role of litigation in our society is not just a matter to be left up to the trial lawyers."
Reformists see two broad remedies for what they regard as the problems posed by judicial elections: merit selection, in which a governor or special commission appoints judges, and a system of public funding of judicial races.
In May, the 4th U.S. Circuit Court of Appeals upheld North Carolina's system of publicly financing elections for positions on the state's appellate and Supreme Court. "This is a very conservative court, and to have them legitimize public financing is significant," said Bob Hall, executive director of Democracy North Carolina, a nonprofit group that backs so-called clean elections.
|
Read the Full Report (Subscription Required)
