DOROTHY SAMUELS: Judges for Sale

It was bound to happen sooner or later. Special interests have long targeted candidates for executive offices, like president and governor, and legislative offices, like Congress and state legislatures. It was just a matter of time before well-heeled business and other interests would expand their influence-peddling efforts, and begin pouring large amounts of money into previously sleepy judicial campaigns.

Several years ago, it started happening — first in just a few states, then spreading to a lot more. The unwholesome result is the dawn of a new era of raucous million dollar-plus campaigns for key state judgeships that is forcing more and more would-be jurists to bond with special interest backers, and invest in cheesy 15- and 30-second TV spots, if they want to get on the bench, and stay there.

As spending by special interests in state judicial elections soars into the stratosphere, something very precious to Americans is being grievously compromised. And in certain pockets of the country, it seems well on the way to being lost altogether. That precious something is the integrity and impartiality of the nation's courts.

Justice, the saying goes, is blind — symbolized in courthouses across the country by statues of Lady Justice, blindfolded so she can rule without fear or favor. But increasingly, there is one thing Justice in America can see quite clearly — who is giving her money. A modern rendition of Lady Justice would show her with one arm extended, reaching for large campaign contributions. Those contributions — from insurance companies, big business, tobacco companies, the building and health care industries, unions, trial lawyers, the religious right, and other special interests — do more than create a bad appearance. They seem to be having an effect on the decisions courts are making.

If we want to preserve an independent and impartial judiciary — something that is a shining part of what America stands for, and an indispensable guardian of American rights — getting rid of the corrupting influence of money sloshing around in judicial campaigns is now a matter of genuine urgency.

I. Bad Alchemy: Turning Judges Into Politicians

It is no longer shocking that special interests have proved adept at corrupting Congress and state legislatures by using humongous campaign contributions to win government favors. Now, though, these same special interests are turning their attention, wallets, and political firepower to buying up state judges, calculating — correctly, sad to say — that pouring millions into helping to seat judges likely to side with them in important cases can be a darn good investment.

Just how good an investment was driven home last month, when the United States Supreme Court declined, without comment, to review last year's 4-to-2 Illinois Supreme Court decision that threw out, on specious legal grounds, a $10.1 billion award against Philip Morris U.S.A. for enticing consumers to buy "light" cigarettes on a fraudulent promise they were lower in tar and nicotine.

Predictably, critics of big consumer class actions — and of the plaintiff-friendly Illinois jurisdiction of Madison County in particular — joined the world's largest cigarette company in applauding the high court's pass.

But some victory. The state Supreme Court justice who cast the deciding vote in the case, a former lower court judge named Lloyd Karmeier, received million of dollars in campaign support in 2004 that Philip Morris and other tobacco interests tendered for the very purpose of trying to reverse the enormous "light" cigarette award. They got what they paid for.

Judicial ethics rules exempt campaign contributions from their otherwise strict approach of requiring judges to disqualify themselves whenever their impartiality might reasonably be questioned. But given the history, Justice Karmeier's failure to voluntarily recuse himself was a disgrace.

The Philip Morris case, it should be noted, was not the first time that Justice Karmeier, a Republican, ruled for big contributors in a high-profile case.

In 2004, fresh from the record-setting campaign brawl in which he and his Democratic opponent raised in the vicinity of $9.3 million in political contributions — an amount surpassing the fundraising totals in 18 U.S. Senate races that year — Justice Karmeier voted to reverse a breach of contract verdict of more than $450 million against State Farm Automobile Insurance Company.
Legally, the result may not have been unreasonable, but it nevertheless carried a stench. While the case was pending, State Farm employees, lawyers, and others affiliated with the insurance company made $350,000 in direct contributions to Justice Karmeier's all-but-bottomless election war chest. Groups closely tied to State Farm gave over $1 million more.

Mr. Karmeier is hardly alone.

Examples abound of state judges rendering rulings favorable to their large contributors in significant cases. Indeed, a study last fall of the Ohio Supreme Court by Adam Liptak, Janet Roberts, and Mona Houck of The New York Times found that sitting on cases after receiving campaign contributions from the parties involved, or from groups filing support briefs, is routine. In the 215 Ohio cases with the most glaring potential for conflicts of interest over a 12-year period, state justices recused themselves just nine times. Ohio justices voted in favor of their contributors 70 percent of the time.

In 2002, Justice-at-Stake, a judicial reform group, surveyed 2,428 state court judges around the country. More than half of them candidly conceded that campaign donations influenced their decisions at least some of the time.

With business interests — including manufacturers of flawed and unsafe products and big environmental polluters — now outpacing the organized plaintiffs bar and everyone else in underwriting candidates in expensive judicial races, strong enforcement of established consumer, health, and environmental protections is in serious jeopardy, along with fair functioning of the legal system, and public respect for the courts.

Although the judiciary's big money problem is most visible at the state Supreme Court level, where high-spending TV advertising underwritten by special interests is becoming the norm, money is increasingly infecting the justice system at lower levels, too.

Last June, for example, The Los Angeles Times reported that 17 incumbent district judges in Nevada on the ballot of the last judicial election raised over $1.7 million in campaign funds. Much of the money was harvested from attorneys and casinos and other corporations with cases pending before them. Of the 17 incumbents, the report further noted, 13 ran unopposed, but collected nearly $1 million in campaign contributions anyway.

At the end of the campaign, they were sitting on unspent contributions of $634,000, which they were not required to return. Instead, Nevada law provides broad leeway for judges to roll over excess contributions to their next campaign — discouraging future challengers — or to pay for fancy restaurant dinners or other lifestyle enhancing activity that might creatively be justified as campaigning.

The resulting damage here is palpable. Courts derive their legitimacy from their perceived neutrality and independence. Judges, whose constitutional role it is to fairly apply the facts and law in individual cases, are supposed to stand up to powerful interests when necessary — with no exemption for campaign contributors. When check-wielding interest groups support congenial judicial candidates — in essence, buying up seats on the bench — they undermine the fundamental mission of the courts.

II. The Turning Point

Thirty-nine states choose at least some of their top judges by election, creating a patchwork of partisan and non-partisan contests, and uncontested up-or-down votes on appointed incumbents, known as "retention elections."

In all, about 86 percent of America's judges are required to face voters.

Judicial elections have always been a breeding ground for conflicts of interest. Beyond a candidate's relatives and personal friends, and a smattering of good government types, after all, who would feel motivated to contribute to the average judicial contest — except for those looking to improve the odds of favorable rulings, namely lawyers and their clients?
But, until recently, contests even for the top state judgeships were typically quiet, low-visibility affairs, and the fundraising and conflict issues relatively benign. In many places, campaign contributions were less of a worry than other perennial problems, like undue clubhouse influence, partisan or ethnic voting defeating worthy candidates, low voter interest, and a shortage of quality candidates willing to run.

But in just a few short years, state judicial campaigns have changed dramatically, and not for the better. Thanks to a huge influx of special interest money, once tame and dignified judicial contests are more and more degenerating into nasty and expensive partisan slugfests, complete with inaccurate and distorting TV ads that mimic the worst excesses of campaigns for Congress or governor.

In the December 1 issue of American Lawyer, Alison Frankel retraces the history of the successful business-backed movement to remake the civil justice system to render it less hospitable to product liability suits and high damage awards for people's injury claims — the prime driving force turning judicial elections into corruptive money pits.
In the late 1980s in Texas, Ms. Frankel recounts, a coalition of businesses and doctors formed the Texas Civil Justice League and proceeded to lobby the state legislature for a cap on punitive damages and other pro-defendant changes in the law.

As part of their strategy, they also got heavily involved in state judicial elections by, among other things, distributing millions of playing-card-sized voter guides through local businesses and doctors' offices. By 1995, these efforts had succeeded in transforming the Texas Supreme Court. "The new Texas court showed its allegiance quickly," Ms. Frankel writes, "with pro-business ruling on punitive damages and expert witnesses."

But the real turning point came in 2000.

In October of that year, the United States Chamber of Commerce, the prominent business lobby, announced that it would spend more that $1 million on "educational" advertising in Mississippi and a handful of other states where companies complained of "frivolous" lawsuits.

Its stated goal was to warn voters about judicial candidates who might overrule so-called tort reform legislation backed by business. The Ohio and Illinois Supreme Courts had already done just that, throwing out sweeping tort law changes approved by those states' legislatures on state constitutional grounds.

The $1 million the national chamber of commerce was committing came on top of millions more it was already contributing to advertising campaigns being conducted by its affiliates in Michigan and Ohio dealing with Supreme Court races in those states.

Officials of the national chamber contended more aggressive involvement in judicial races was necessary to counteract the influence of contributions trial lawyers were making to judicial campaigns. They were suggesting a link, not entirely unfairly, between trial lawyer largesse and rulings striking down pro-business "tort reform" laws passed by state legislatures. (Of course those laws' path through the legislatures had been well-greased by the chamber's own generous donations to state lawmakers' campaigns.)

In 2000, state Supreme Court candidates collectively spent $45.6 million on their races, an astonishing 61 percent increase over two years before, and double the total raised by judicial candidates in 1994.

At least half of all donations came from two sectors of society with a big stake in court decisions: business interests and lawyers.

These swelling war chests launched unprecedented judicial "air wars," and a discernible coarsening in the tone of judicial campaigning. All together, more than $10 million was spent barraging voters with more than 22,000 airings of television ads, according to data contained in the 2000 edition of "The New Politics of Judicial Elections," the bi-annual report on judicial campaigns issued by Justice-at-Stake, New York University Law School's Brennan Center for Justice , and the National Institute for Money in State Politics.

The television commercials, many of them decidedly un-judgelike attack ads, were bought either by the judicial candidates themselves or by political parties and interest groups. But at least, all those 15-second and 30-second TV ads were confined to just four states with fiercely contested races — Ohio, Mississippi, Michigan, and Alabama. The rest of the country was spared.

III. The Virus Spreads

In the 2002 election cycle, regrettably, more states were infected by this special-interest-money fever.
More special interests began targeting state Supreme Court seats, and television ads became a mainstay of judicial elections in more than twice as many states as in 2000 — even though fewer states had contested elections that year.
In Mississippi, the average cost of winning a judgeship skyrocketed to more than $1 million, compared to just under $400,000 two years earlier — the increase, perversely, both driven and underwritten by special interests.

In June 2002, the U.S. Supreme Court, made it harder to contain the damage. Its 5-to-4 ruling in one landmark case, Republican Party of Minnesota v. White, struck down, on free speech grounds, a Minnesota rule forbidding judicial candidates from announcing their views on contentious public policy issues.

The issue of candidate speech in campaigns for the bench, it should be said, is not a simple one. Once states decide to elect judges, voters need meaningful information so they can determine who, from their standpoint, would make a better judge, and candidates are entitled to leeway beyond what some state judicial codes have historically allowed to make their case.

The difficult challenge, which Justice Antonin Scalia's majority opinion brushes past, is to spell out an approach that leaves adequate room for campaign speech while making clear that states retain the authority to draw a line against judges and judicial wannabes promising, or coming perilously close to promising, to rule a particular way on an issue percolating in the courts.

Emboldened by the White ruling, state supreme court candidates and special interests spending on their own ran television ads in 11 competitive judicial races in 2002, appealing to voters by invoking hot button issues like tort liability and crime. In nine of those contests, the candidates who spent the most on ads won.

Former Justice Sandra Day O'Connor, a fervent crusader in her retirement for preserving judicial independence, has lately expressed regret about her deciding vote in the White case.

Justice O'Connor devoted most of her concurring opinion to detailing her longtime opposition to judicial elections and support for merit appointment of judges, but ultimately concluded that if states persist in having judicial elections, candidates must be allowed to have their full-throated say.

Whatever one's view of the underlying First Amendment issue, the eloquent dissenting opinion filed by Justice Ruth Bader Ginsburg, warning of the potential for increased politicization and undermining of the judiciary's special role, now seems prescient. Justice Ginsburg and her fellow dissenters, Justices John Paul Stevens, Stephan Breyer, and David Souter, also pointed to the affront to due process when litigants must appear before judges whose apparent neutrality is compromised not just by campaign fundraising but by their outspoken statements on issues during an election.

But back to the timeline. Since 2002, the involvement of moneyed interests in state Supreme Court elections has only escalated. The $24.4 million candidates and interest groups spent on TV ads in 2004 more than doubled the previous record set in 2000. The average amount raised by winning candidates who raised any money was about $650,000, compared to $450,000 in 2002.

"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," declared the 2004 edition of "The New Politics of Judicial Elections." State supreme court contests, the report further noted, "are becoming epic battlegrounds in the tort liability wars, the culture wars, and other contests where powerful groups and wealthy donors seek to install judges who will rule in their interest, not the public interest."

This year the trend continued. Voters went to the polls in 22 contested Supreme Court races in 11 states on November 7. TV ads appeared in all but one of the states, and new candidate fundraising records were set in four states, according to the Brennan Center of Justice. In at least eight Supreme Court campaigns, fundraising totals soared past $1 million. In Washington State, independent advertising by special interest groups in furtherance of an unsuccessful primary campaign to oust the state's incumbent Supreme Court Chief Justice, Gerry Alexander, exceeded $1.3 million, according to a recent report in the Seattle-Post-Intelligencer.

The doubts created about judicial impartiality are soaring just as rapidly.

IV. The Race for a Cure

Federal court administrators use the term "judicial emergency" to refer to federal jurisdictions where the appointment process has lagged in filling judicial vacancies. In states where judges are chosen by election, by contrast, the real "judicial emergency" isn't vacancies, but the degree to which courts are now filled with judges who are beholden to the moneyed interests that helped elect them.

Of course, no method of choosing judges is perfect or altogether free of politics. Appointive systems breed their own set of confounding issues. That has never been more true than today, with the tremendous partisan wrangling at the federal level over the qualifications and ideology of presidential court nominees.

But judicial elections that are increasingly polluted by enormous floods of special interest money are far worse. The disturbing role that money now plays — which is only getting worse — seals the case for abandoning elections in favor of merit selection.

Even merit selection does not completely remove special interest money from the process — special interests can still contribute to governors, or whoever is doing the appointing, and they lobby for certain kinds of judges to be appointed. But by using a process that assigns a major role in the winnowing of applicants to an independent blue ribbon screening panel not controlled by the appointing elected official — the course long urged by many bar associations and civic groups — special interest influence can at least be limited.

Unfortunately, merit selection of state judges has to be a long-term goal. There is still considerable popular support for the idea of electing judges, and special interests that are doing well with their pay-to-play contributions to judicial candidates have every selfish reason to defend the status quo.

On the encouraging side, the defeat this past election of several ballot initiatives backed by interest groups seeking to cut back on judicial power and independence was a sign voters understand the importance of maintaining a strong court system. In the aftermath of November's elections, debate over the problem of money in judicial elections is intensifying, and the list of states considering some sort of reform is growing.

Short of the wholesale replacement of judicial elections with a merit appointment system, the next best antidote would be replacing the special-interest money flowing to judges with clean public financing. North Carolina recently adopted a public financing system for judicial elections, and it seems to be working well so far in enhancing judicial independence.

More rigorous financial disclosure is also needed. As Public Citizen has usefully detailed, for example, the Chamber of Commerce has a history of channeling electioneering money to front groups in order to disguise pro-business support for favored juducial candidates.

It would also help if judges who benefit from huge campaign donations from special interests would have the good sense and decency to recuse themselves when big cases involving those same interests come before them. State bar associations, ethics boards, and state legislatures should be pushing for tougher recusal rules — and pointing out the illogic of saying that a small gift by a litigant to a judge creates an impermissible conflict, but a multi-million-dollar campaign contribution, which can make the difference between a judicial candidate winning or losing his judgeship, does not. In states that hold partisan judicial elections, switching to nonpartisan campaigns, which are typically less expensive, and bereft of party labels inappropriate for judicial office, would be another positive tweak.

The U.S. Supreme Court, for its part, should revisit its decision in the White case to at least make clear that its permissive attitude toward candidate speech does not extend to barring states from curbing the direct involvement of judges in hitting up donors, or promising voters how they would resolve a particular case or churning legal issue.

It is bad enough that the ever-increasing cost of running for legislative or executive office fosters cozy ties between politicians and special interests looking to influence government decisions. The extension of that seamy pathology to powerful elected judgeships marks a disturbing escalation of the political influence game.

Judges are supposed to be different.

Legislative and executive officials represent their various constituencies. Judges, in contrast, are supposed to represent only the ideal of justice. A judge deciding a case shouldn't be worrying how ruling a certain way might affect campaign fundraising, or whether it might invite a blitz of negative TV ads in the next election.

It is time — long past time, really — to drain the influence money from America's system of justice.