Nel's New Day

August 8, 2014

The Art of Buying Judges Escalates

Tennessee had an election yesterday, and the Koch brothers lost. The fight was over replacing three justices on the state Supreme Court. It wasn’t that they did anything wrong; it was just that they had been appointed by a Democrat. Lieutenant Governor Ron Ramsey decided that the Democratic appointees needed to be traded out and gave $425,000 of his own campaign’s money for the cause.

State Supreme Court justices get their positions in different ways across the nation. In Tennessee, voters decide whether to retain members of the Supreme Court. The electorate kept all three “controversial” justices for another eight years by about 57 percent over 43 percent who voted against them. To keep their positions, justices had to raise money for their campaigns just as legislators do, often getting contributions from lawyers who will try cases in the court.

Spending on television spots for justices has escalated in the past decade, almost tripling the 2001/2002 expenditures for the 2011/2012 election cycle. For that election, the costs went over $3 million in five separate states, with Michigan alone spending almost $9 million. As a comparison, television campaigning for justices in my state of Oregon was about $100,000.

Special-interest groups provided 38 percent of all television spending for state Supreme Court justices in the last election cycle, with 90 percent of this special interest money going to just six states—Florida, Oklahoma, Iowa, Mississippi, North Carolina, and Wisconsin. Oklahoma’s Yes for Fair and Impartial Judges spent more than $450,000 in 2012 calling on voters to “keep politics out of the Oklahoma Supreme Court.”

One result of all this funding is the increase in state Supreme Court rulings for prosecutors and against criminal defendants for fear of being portrayed as “soft on crime.” For their study, researchers examined data between 2000 and 2007 from supreme courts in states where campaigns spent over $3 million: Illinois, Mississippi, Washington, Georgia, Wisconsin, Nevada, and West Virginia. The study used 4,684 rulings in criminal cases starting five years before a given state’s first $3 million high court election and ending five years after that election.

Illinois is an example of the change. After the 2004 race breaking campaign spending records and bombarding voters with attack ads featuring violent criminals, the high court ruled in favor of the prosecution in 69 percent of its criminal cases—an 18 percent increase over the previous year. Mississippi had the same experience: justices ruled against criminal defendants in 90 percent of the cases in 2002, a 20 percent increase from 2000. Wisconsin matched Mississippi.

Correlations were strongest when more ads came from independent groups unaffiliated with the candidates because these groups are more likely to use attack ads. Nevada, with no independent spending, lacked the pattern in the other states. In states such as Washington and Georgia, where spending spiked and then declined, the percentage of rulings against criminal defendants followed the same pattern.

Smear ads in Michigan described one justice candidate as having “volunteer[ed] to help free a terrorist.” In Ohio, a state Republican Party ad accused Supreme Court candidate Bill O’Neill of being “sympathetic to rapists,” based on a decision he made as an appeals judge overturning a rape conviction due to ineffective assistance of counsel. During the 2004 West Virginia Supreme Court election, a group funded by coal mogul Don Blankenship warned that an incumbent justice “voted to release” a “child rapist” and then “agreed to let this convicted child rapist work as a janitor in a West Virginia school.” Another campaign ad, this one in the 2012 Louisiana Supreme Court race, claimed that one of the candidates had “suspended the sentence of a cocaine dealer, of a man who killed a state trooper, two more drug dealers, and over half the sentence of a child rapist.”

Over-incarceration has been a growing problem in the past half century, and the United States has searched for solutions. The federal government is scaling back the use of harsh mandatory minimums, and some states, including Georgia, are experimenting with alternative sentencing. Politicization of judicial elections must be included as part of these solutions.

Other rulings show the conflict of interest between judicial practices and campaign contributors. Judge Rudolph Randa of the U.S. District Court for the Eastern District of Wisconsin frequently attends Koch brothers’ conferences at no expense to himself. Recently, he ended the investigation into potentially illegal campaign coordination between Gov. Scott Walker and conservative organizations such as Wisconsin Club for Growth. He described the coordination as “promoting political speech,” and prosecutors were told to return all seized property and destroy copies of documents they had obtained. Fortunately, the 7th U.S. Circuit Court of Appeals stayed Randa’s order before the documents were returned or destroyed.

Campaign ads across the nation have attacked judges’ rulings: same-sex marriage in Iowa, the Affordable Care Act in Florida, and collective bargaining in Wisconsin. In 2012, politicians, including former presidential candidate Rick Santorum and Louisiana Gov. Bobby Jindal, joined the “No Wiggins bus tour” in opposition to one of the judges who ruled to legalize marriage equality in Iowa. Wiggins kept his seat with 54.5 percent of voters supporting him, but the last three justices involved in the 2009 decision are up for election in 2016. After Bill O’Reilly and Nancy Grace attacked individual state judges a few years ago, legislators filed articles of impeachment against them.

Last fall, a group called the Judicial Crisis Network lobbied the Oklahoma legislation to stop vetting candidates with the Judicial Nominating Committee and select them only through direct partisan elections. The organization, originally known as the Judicial Confirmation Network, has the sole purpose of raising money and funding campaigns for conservative judicial candidates. Information about the group’s background was not divulged during its testimony.

Some anti-choice groups are pushing to have Republican governors and legislators select state judges. Kansans for Life supported the change in state law that allows the governor—in this case, the ultra-conservative governor—to pick justices for lower state courts without making the application pool, interview process, or selection criteria public.

In states with Democratic governors or legislators, the anti-choice groups threaten legislators with negative scorecard votes. In Pennsylvania, a legislator’s vote to remove partisan elections for justices would be considered by these groups as a “pro-abortion” vote. The same thing happened in Minnesota.

The Republican State Leadership Committee has started the Judicial Fairness Initiative to back judge candidates with conservative ideologies. The RSLC has already contributed $650,000 to Justice for All NC, a state that had over $3 million in judicial campaigns in the last election cycle. Alice Bannon, of the Brennan Center for Justice at the NYU School of Law, described the politicization process of judge selection, “Judges essentially become politicians with robes.”

In 14 states, campaigning judges identify themselves as a member of a specific party. All 163 judges in Alabama, for example, are elected in partisan contests. In two states, Virginia and South Carolina, the legislatures elect judges. The Florida governor nominates the state’s seven Supreme Court justices and 60 Courts of Appeal judges, and the Hawaii governor appoints 44 judges at varying levels.

A total of 38 states elect judges in a country where people expect courts to be fair and impartial. Their reason for existing is to resolve disputes on an impartial basis and protect people’s rights. More than 90 percent of all cases go through a state court that’s becoming increasingly controlled by money from lawyers, lobbyists, and business interests.

West Virginia has public funding for judicial elections, and a few states—Arizona, California, Iowa, Michigan, Missouri, New York, Oklahoma, Tennessee, Utah and Washington—have recusal laws preventing a judge from hearing a case involving a campaign donor. At least the Koch brothers lost yesterday in Tennessee.

1 Comment »

  1. The good news for those of us who live in Oregon is that campaign funding of judicial races in our state has remained relatively free of attempts at “buying judges”. I reviewed the campaign donations of the most recent Oregon Supreme Court contested race and most contributions were $500 or less. The largest contribution appeared to be from the Oregon Education Association, and that was for $20,000. A few unions gave up to $10,000, but generally much less. A very few large law firms gave in the $5,000 to $15,000 range. Most contributions were from lawyers and law firms because they are probably the ones most interested in having good judges, but most of these were less than.$300.

    The truth is that the general public pays little attention to judicial races, and rarely donates to them. It is too bad that most do not educate themselves about judicial candidates as the decisions of judges can have a huge impact on all of us.


    Comment by Nancy — August 8, 2014 @ 10:04 PM | Reply

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