New York Times  [Printer-friendly version]
December 12, 2006


[Rachel's introduction: "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..."]

By Dorothy Samuels

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

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

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

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

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

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.

Lela Moore contributed research for this article.