The Growing Threat to Fair and Impartial Justice
In Pennsylvania this month, another campaign spending record was smashed. Old news? The twist is that more than $5 million has been raised this year by state supreme court candidates. Across America, their brethren are caught in a fundraising arms race that threatens the impartiality of our courts. This new politics of judicial elections is dangerous because it seeks to make judges answerable to special interests and political partisans, rather than to the law and the constitution.
Although almost 90% of America’s state judges must stand for election, judges historically haven’t had to raise huge war chests, cater to interest groups, make sound-bite promises, or respond to hardball attacks. But over the past decade, political and special interest pressure has been changing the nature of contested Supreme Court campaigns in America. A “perfect storm” of hardball TV ads, millions of dollars in campaign contributions, and increasingly bare-knuckled special interest politics have descended on court campaigns across the country.
Costly and corrosive court campaigns have fast become the new norm. Attorneys, partisans, and special interest groups with cases in court are pouring millions of dollars into judicial contests - mostly for those of high courts, but increasingly into those of appellate and even district courts. Broadcast television ads seek to push wedge-issue politics into our courts of law. Aggressive questionnaires from special interest groups seek to pressure judges to take stands on controversial issues - before they even hear a case.
The breakthrough year for big money court campaigns was 2000, when state supreme court candidates raised a record $45.6 million - a 61% increase over the previous election cycle-and political parties and interest groups spent at least $10 million to $16 million more on independent TV ads. Since 1999, candidates for America’s state high courts have raised more than $157 million, and fundraising records in at least 15 states have been eclipsed. For example, in a 2004 rural judicial district race in Illinois, two candidates combined to raise a record $9.3 million - more money than 18 of the 34 U.S. Senate races that year. “That’s obscene,” said the winner on election night. “How can people have faith in the system?”
Much of this money is being spent as part of the nation’s tort wars. Of the $157 million raised by judges between 1999 and 2006, 35% came from businesses and business groups, another 26% from attorneys (plaintiff and defense), 11% from political parties, and 7% from the candidates themselves. In the 2006 election cycle, business groups outspent lawyers by more than two to one, but that may be about to change: Trial lawyers are vowing to escalate their spending, and a new Democratic Judicial Campaign Committee is vowing to raise millions to unseat judges and justices across the country.
Americans are worried about the effect on impartial justice: 76% believe that campaign cash affects courtroom decisions. In a separate survey, more than one in four state judges agree. Interest groups aren’t content to rely on fat checkbooks and nasty TV ads to throw their weight around in judicial contests. They’re also trying to pressure candidates into making statements on the campaign trail - on all sides of hot button issues like abortion - in order to intimidate judges and lock them into positions before they take a seat on the bench.
In the face of metastasizing special-interest pressure, many states are considering reforms. North Carolina and New Mexico adopted public financing for judicial races. Minnesota may join 16 other states using merit selection and up-or-down “retention elections” to choose their high court judges. There is growing interest in requiring judges to recuse themselves from at least some cases where contributors argue before them in court - or when campaign trail speech calls their partiality into question. In low-turnout judicial races, where interest groups can tape a race by turning out their base, nonpartisan voter guides can help insulate judicial contests in the hands of mainstream voters.
Next year more than 30 states will hold high court elections. These races can’t be left in the hands of partisans and politicians. It’s time for everyone - judges, lawyers, and civic leaders - to enter the national debate over our courts. Americans need judges who are accountable to the law and the Constitution, not to special interests.
October 24th, 2007 at 1:48 pm
Elected judges are better than appointed judges or the Missouri Plan (appointment initially and then elections without opponents where voters decide to keep or reject). The question is not which meathod is perfect but which is better.
Scalia and Thomas are prime examples of politics in the appointment of judges. However, here is KY we never have elected anyone even close to Scalia and Thomas. And never will.
And, when an apointment is necessary here in KY, politics certainly can be and has been involved.
Politics certainly was involved in Bush v Gore. In the case of the century the majority ruled that is decision was not to be considered as precedent.
The problem in the Fed Courts is that nominees (both by Dems and Rs) are limited for the most part to attorneys from big corporate law firms and political operatives. That is not the way to get an independent judiciary. In contrast elected judges got elected without the help of a president or governor and so are independent of them.
I’ve seen appointed judges and I’s seen elected judges. I’ll take elected judges.
James P. Benassi
Henderson, KY