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

Interest group ads can also feature state judicial candidate responses to the issues questionnaires they increasingly demand that candidates answer. For example, a corporate-backed group in Illinois asked all judicial candidates in the state about their positions on issues from class action suit rules to the constitutionality of punitive damages.

The Christian Coalition of Georgia asked Supreme Court candidates there about such issues as abortion, parental choice in education and “equal access for theology majors to a state-funded college scholarship program.” It blasted candidates who refused to commit to how they would decide many future cases. Idaho’s Christian Coalition pressed candidates to agree with the statement that “the United States Constitution is Christian-based” and to agree to display the Ten Commandments in their courtroom.

“Until a few years ago, judicial candidates could safely throw such nosy and coercive queries right into the round file” because of pre-White restrictions, wrote Burt Brandenburg, executive director of the Justice at Stake Campaign. “It hardly bears mentioning here that ‘Refused to Respond’ is the kiss of death from an interest group,” he added.

“More and more, judicial candidates find themselves pressured to play by a new set of rules: take sides on controversial issues that may come before the courts, advertise your political commitments, lower your ethical standards—or an interest group will measure a black robe for someone else who will play that game,” the Justice at Stake Campaign has concluded.

The pressure on high-stakes judicial candidates to fund television ad campaigns has vastly increased the need for contributions from special interests. “In a growing number of states, judicial races are evidencing an ‘arms race mentality’ of rising expenditures, heightened competition, and growing interest group activity,” the Committee for Economic Development stated in 2002.

For example, the nine candidates for three Nevada Supreme Court seats in 2004 raised and spent a total of over $4 million, more than half of which was spent by the winners, according to the Progressive Leadership Alliance of Nevada. The average amount spent by those winners was up 73 percent from only two years earlier.

Candidates must tap traditional sources like lawyers and businesses—as well as nontraditional interest groups—as never before. The top three sources for candidates’ campaigns in 2004 were business, lawyers, and political parties, according to the Institute on Money in State Politics. The Institute has not been able to compile similar data on contributions and spending by independent campaign organizations, but anecdotal evidence is that the sums contributed were high.

Noteworthy for 2004 was the doubling of contributions by business from two years earlier. “For the first time since the Institute’s record keeping began in 1989, contributions from business donors outstripped contributions from lawyers,” the Justice at Stake Campaign stated. This change reflects the aggressive new efforts by businesses and their organizations to revise tort liability laws and procedures, largely the province of state courts. Business contributions can also reflect unique state or local issues. For example, tort reform is the focus of the Illinois Civil Justice League, which began preparing for the 2006 elections over a year earlier. “The most important elections in Illinois in 2006 have nothing to do with the White House or the State House. They’re all about the Court House,” read one of its publications in 2005. In Nevada the gambling industry has accounted for a large share of contributions in judicial races there. The coal industry and the state regulations in West Virginia that govern its operations is another example.

It’s a troubling trend. According to a poll of elected state judges in 2001 and 2002, forty-eight percent felt a “great deal” of pressure to raise money for elections. Asked how much influence contributions had on their decisions, four percent of the judges said “a great deal of influence,” twenty-two percent said “some influence,” and twenty percent said “just a little influence.”

“Those statistics should scare anybody who has a case pending before these judges because the right answer is supposed to be ‘no influence at all,’ which garnered a mere 36 percent,” Business Week opined, adding, “The moral in these states is clear: It pays to hire a lawyer who has donated to your judge’s campaign.” The heavy campaign spending of recent court elections creates “a perception that justice is for sale,” stated Gorman Houston, a retired Alabama Supreme Court Justice.

Even the winner of the nation’s most expensive court election, Illinois Supreme Court Justice Lloyd A. Karmeier, objected to how much his campaign cost, saying it was “obscene for a judicial race,” and adding, “How can people have faith in the system?”

A year later, Justice Karmeier cast the decisive vote in a 4-2 majority to overturn a $10.1 billion judgment against the Phillip Morris tobacco company—after benefiting in 2004 from contributions of more than $1 million from the Illinois Civil Justice League, which filed a brief in support of the Phillip Morris appeal. Without Karmeier’s vote, the appeal would have failed. His 2004 Democratic opponent received millions from plaintiff’s attorneys opposed to the appeal.

“This is a good example of why both sides were so interested in this race,” Cindy Canary of the Illinois Campaign for Political Reform told the St. Louis Post-Dispatch. Justice League spokesman Ed Murnane called it “terribly insulting” to imply that campaign contributions could sway a specific court decision, adding that “we supported him because he’s a conservative.”

With the “political battle zone” expanding into judicial elections, Business Week stated in 2004, “The political patronage that once existed in Mayor Richard J. Daley’s Chicago is being replaced by a new form of interest-group patronage…One by one, many of the special unwritten traditions of civility and nonpartisanship that give the judiciary its moral authority is starting to erode.”

Perhaps of even more fundamental concern is the increasing demand from special interest group for judicial candidates to declare their positions before they hear cases, which can jeopardize the right of litigants to a fair hearing. “When a judicial candidate promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave,” wrote U.S. Supreme Court Justice Ruth Bader Ginsburg in her dissent in the White ruling.

A wide spectrum of the public has expressed concerns, as well. Nearly 71 percent of Americans—and over 90 percent of African Americans—polled by Zogby International believe that campaign contributions from interest groups have at least some influence on judges’ decisions. Of note is that the poll was conducted nearly eight months before Election Day 2004.

Next page: Reformers from bar associations to Corporation grantees such as the Brennan Center for Justice at New York University and the Committee for Economic Development—an independent, nonpartisan organization of business and education leaders dedicated to policy research on the major economic and social issues of our time, including campaign finance reform—are advocating significant reforms in the selection of judges.

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