by Robert Rackleff

Are money and special interests tipping the balance
in the process of electing judges?

Indicted for election law violations in 2005, then-Republican U.S. House Majority Leader Tom DeLay charged that the presiding Texas judge, a Democrat, was biased against him and had him removed from the case. The prosecutor, in turn, had the next two proposed judges, both Republicans, removed for alleged partisan bias in favor of DeLay. q Competing for an open seat in the 2004 election for District 5 of the Illinois Supreme Court—representing the state’s 37 southernmost counties—the Republican and Democratic candidates spent a combined $9.3 million, over $16 per vote cast. The District includes Madison County, called by tort reform groups the nation’s “number one judicial hellhole” for its many court rulings that favor plaintiffs in nationwide class action suits. q With several cases involving his coal companies before the West Virginia Supreme Court, Don L. Blankenship contributed $2.45 million to defeat incumbent Justice Warren McGraw, a Democrat, in 2004 and elect Republican Brent Benjamin. Blankenship was before the court the next year to appeal the state’s order to shut down a polluting waste pond owned by one of his companies. Later, Blankenship vowed in a speech to target Justice Larry Starcher for defeat in 2008, accusing him of bias against him.

Money and Partisanship
Republican judges? Democratic judges? Multimillion-dollar state Supreme Court justice campaigns? Corporations with cases before a court spending millions to oust judges who have ruled against them? Questions like these puzzle many Americans accustomed to a judicial system touted worldwide for its independence and fairness.

There are more than 30,000 judges in the 50 states, including over 1,300 appellate judges, 11,000 trial judges, and nearly 18,000 limited-jurisdiction judges, such as family court or municipal court judges, according to the American Judicature Society.

Some form of popular elections for judges takes place in 28 states and 87 percent of all state and local judges must face voters at regular intervals in some type of election. It is a decades-old system that the public believes gives them a voice in who presides over the state and local courts that can directly affect their lives. It is also uniquely American; almost no other nation has popular elections to choose judges.

For a long time, this seemed fine, as long as judicial elections were mostly tame, with many judges elected or re-elected with little or no opposition or rancor. Contested elections required only relatively modest campaign budgets. The campaign rhetoric was usually low-key. In fact, until 2002, judicial candidates in many states could be subjected to disciplinary action if they announced positions about issues coming before the courts, criticized their opponents or even exaggerated their own qualifications.

That has changed dramatically in recent years in ways that alarm many observers of America’s legal system.

The 2004 elections marked a “tipping point” for state Supreme Court campaigns, the nonprofit Justice at Stake Campaign—which has received support for its work from Carnegie Corporation of New York—stated in its report, The New Politics of Judicial Elections 2004. Total spending soared to an estimated $123 million in the past three elections cycles, nearly twice the $73 million spent in the previous three cycles, according to the report.

“A perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics is descending on a growing number of Supreme Court campaigns,” the report stated. “The stakes involve northing less than the fairness, impartiality and independence of courts in the 38 states that elect their high court judges.”

As a result, America’s state and local courts are facing a new challenge of credibility and public trust as campaign spending and contributions to judicial candidates have seemingly spun out of control across the nation.

A look to the future is not encouraging. According to the report, 17 states will have contested Supreme Court elections in 2006—and more than one seat on the ballot in 14 of them—creating “an irresistible temptation for interest groups seeking to pack the court.” In Kentucky alone, 261 of the state’s 266 elected judges will be on that ballot.

The situation has prompted reformers in state legislatures and legal organizations to rethink the current system and to propose changes to reduce the role of money and political parties in the politics of selecting state and local judges. “Clearly there’s a trend toward more money and more acrimony in judicial races, and more judges taking sides on hot-button issues,” said Charles Geyh, law professor at Indiana University.

Next page: America’s courts are facing a new challenge of public trust as campaign spending has spun out of control.

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