Carnegie Reporter, Vol. 3, No. 4 | Judicial Elections Still Fair and Balanced? page 3

The Influence of Special Interests
Political parties in many states have long been involved in selecting judges, either appointed or elected. “When I started practicing law in Chicago [in 1952],” recalled Abner Mikva, longtime Congressman and federal appellate judge, “it was a patronage operation. [Y]ou became a judge by kowtowing to the powers that be. It was not at all unusual for police captains to call a judge and tell him how to rule in a case.”

Even though most judicial elections are nonpartisan, parties are often involved in providing contributions, organizational resources, and public visibility. For example, when the U.S. Supreme Court in 2002 overturned state laws that forbade candidates from voicing their positions on issues that could come before them, it was a party that filed the challenge (Republican Party of Minnesota v. White).

By freeing candidates and supporters to comment on issues and to criticize their rivals, the White decision helped open the floodgates to increasing amounts of special interest money from such sources as trial lawyers, labor unions and businesses.

As a result of eased restrictions on rhetoric and growing special interest involvement, political parties no longer have to limit their activities or rhetoric. In the 2002 Illinois Supreme Court election, both Democratic and Republican parties spent about $4.2 million combined on campaign ads. In 2004, Georgia Democrats paid for campaign ads promoting the incumbent Supreme Court Justice Leah Sears for the first time in that state’s nonpartisan election.

An even more dramatic change is the rising tide of interest groups’ direct involvement, such as abortion rights opponents or supporters, business groups seeking more sympathetic court rulings or civil rights advocates.

For example, in the 2004 Illinois Supreme Court election, trial lawyers and labor groups formed the Justice for All Political Action Committee to attack Republican judge Lloyd Karmeier as soft on crime for granting probation to a defendant who later kidnapped and nearly beat to death a 92-year-old grandmother. In Mississippi, incumbent Justice James Graves won a runoff against a challenger supported by over $300,000 in advertising, mostly television, paid for by the Improve Mississippi Political Action Committee, a pro-business, tort reform organization.

In another example, the U.S. Chamber of Commerce has spent an estimated $50 million on judicial races since 1998, according to Business Week to limit tort judgments against businesses in state courts. Having learned that open support of pro-business candidates could backfire, the U.S. Chamber provides support through other organizations. It paid over $2 million to the state Republican Party—and another $250,000 to a tort-reform political committee—in 2004 to win a sympathetic Illinois Supreme Court seat.

As Business Week noted in 2004, “Increasingly, [special interest groups] have come to view the judiciary as something to be gamed and captured—just like Congress or the State House.” Home Depot co-founder Bernard Marcus, who is active in the U.S. Chamber of Commerce, stated in that year, “We’ve declared war on judges who aren’t doing their duty,” driving home his point that he wanted to unseat judges who he did not consider to be pro-business.

For both interest groups and candidates, the chief means of campaigning for state Supreme Court seats has become television advertising—little used as recently as the 1990s. The contraction of reporting staffs by newspapers beset by circulation declines in recent years has limited print coverage of judicial elections.

Television news coverage is even more limited. As the Alliance for Better Campaigns found, “there is a near black-out of local public affairs” on the forty-five broadcast stations it studied in 2003. One study of the 2002 elections found that fifty-six percent of the local news broadcast on the top 122 stations nationwide had no campaign stories at all in the six weeks leading up to that year’s mid-term elections—yet eighty-two percent had at least one campaign ad.

Ironically, courtroom shows such as Judge Judy and Texas Justice logged 20 times as many hours on these stations as local public affairs stories. (Note that “local public affairs” encompasses much more than judicial elections, or even local elections.)

Because there are so few other sources of any information about judicial candidates—and voting rates in judicial races are usually lower than in others like the state legislature—television advertising is the chief way that the public can learn about judicial candidates.

Campaign managers and candidates now appreciate this new reality. Television ads were used extensively in four-out-of-five states with contested elections in 2004, up from only one-in-four in 2000. Moreover, in the thirty-four races that featured such ads in 2004, the candidates who spent the most on television won twenty-nine of them.

Increasingly, these ads are hard-hitting and negative: one-in-five of all ads that ran in 2004, twice the rate of the previous election cycle, according to the Justice at Stake Campaign. West Virginia Supreme Court Justice Warren McGraw lost his re-election bid after a barrage of television ads accusing him of being soft on child molesters.

Ads in other states also featured candidates and their supporters implying how they would vote on issues that could come before their courts, a practice once considered unethical by many state judicial codes of conduct. A television ad supporting one Mississippi Supreme Court candidate praised him as a man “who believes the words ‘In God We Trust’ belong on the walls in every classroom,” and who “will protect the sanctity of marriage between man and woman.”

Next page: Ironically, courtroom shows such as Judge Judy logged 20 times as many hours on local television stations as public affairs stories, including coverage of judicial campaigns.

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