Why should judges be elected?

By Marianne Means
Gainesville Sun FL.
November 4, 2004

State judgeship elections are running million-dollar campaigns fueled by special interests.

Chief Justice William Rehnquists failure to return to the court after his hospitalization for thyroid cancer was a stunning shock, a brutal reminder that the judiciary has a stake in Tuesday’s outcome as huge as that of the legislative and executive branches.

As the final voice on constitutional questions, the Supreme Court gets the most political attention in this harshly divided nation. But tucked among the high-visibility contests were the largely overlooked results of elections in 15 states for 29 seats on state supreme courts.

These judicial candidates were not anointed; they had to campaign for the jobs they wanted, and many of those campaigns were disturbing. In a number of the 39 states that have some form of judicial election, special interest and business groups spent record-setting amounts to help them influence future court decisions.

The Supreme Court opened the floodgates two years ago with a supremely naive decision that it’’s OK for local judicial candidates to take public policy positions on everything from abortion to stem cell research to the environment and beyond just as other politicians do.

Forcing them to maintain neutrality would be, the court opined in Republican Party of Minnesota v. White, an unconstitutional abridgement of freedom of speech.

Phooey!

That was one of those awful 5-4 decisions, with the conservatives cheering for the right of judges to express their personal opinions and the liberals worried about blowing the important judicial mystique of apparent neutrality and fairness. Sandra Day OConnor, the decisive vote, concurred with the conservative bloc but wrote a separate opinion reflecting her concern that the ruling could undermine ‘an actual and perceived’ impartial judiciary.

The high bench its own credibility questioned after its controversial 2000 ruling to hand the presidency to George Bush should have been sensitive to that particular problem. Ignoring the political consequences of a visible decision is like ignoring a crocodile in your bathtub," Connor observed tartly in her Minnesota concurrence.

O’Connor also fretted about the escalating cost of campaigning for local judgeships. In 2000, for example, the 13 candidates in a partisan election for five seats on the Alabama Supreme Court spent an average of slightly more than one million apiece on their campaigns.

In Illinois alone this year, special interest groups and others have poured more than $5 million for advertising and campaign expenses for a single state supreme court election.

This may leave judges feeling indebted to certain parties or interest groups unless the candidates are wealthy enough to finance their own campaigns, a limitation unrelated to judicial skill,"" Connor observed.

But she voted to allow judicial candidates to publicly take political sides because, she said, the states were responsible for choosing the way they wished judges to be selected. If the states don’t like the corrupting effect of elections, they should change the process.

Indeed, Connor had the right idea. Forcing judges into political campaigns is dumb. Courts with biased judges cannot be trusted.

Business interests that want to limit corporate liability have poured money into judicial campaigns, led by the U.S. Chamber of Commerce. Trial lawyers, who defend average citizens against professional and industry wrongdoing, countered with their own contributions aimed at creating a favorable atmosphere for class action litigation.

Conservative organizations that oppose abortion and stem cell research were also active in trying to influence judicial choices. They pressed candidates to fill out questionnaires that would put them on the record on many issues that would come before them on the bench.

Some candidates refused to play along. Local judicial ethics rules protect judges from such constituent pressure in many states. But those rules are under political assault in many places and may be buckling.

Another complication is that unlike legislative and presidential contests, there are no limits on contributions for judicial campaigns. It’s a mess, and an expensive one.

The state courts are the farm team for the federal bench and eventually the Supreme Court. President Bush tried to make a campaign issue out of the fact that Senate Democrats blocked some of his most conservative judicial appointments to the federal bench.

One of the latest was anti-abortion Texas Supreme Court judge, Priscilla Owen, who accepted $8,600 from Enrons political action committee when she ran for the bench in 1994. She later wrote an opinion reversing a lower-court order with the potential of saving Enron millions in assessed school taxes. She did not recuse herself; she was not required to do so, but a minimal sense of judicial integrity might have persuaded her to do the right thing.

The presidential campaign did not turn on judicial issues; too much other heavy stuff going on. But now that the election is over, the states ought to pay some attention to this festering and growing problem. It is in every state’s interest to see that judges are selected by some professional process that stresses merit, rather ability to garner political donations.

Judicial Races Get Meaner

Emily Heller
The National Law Journal
10-25-2004

On the eve of the 2004 judicial elections, special interest groups are flexing big muscles in state Supreme Court races, using both familiar and new tactics.

Remember the rancor and big bucks of the 2000 and 2002 judicial elections? They're back, and then some.

In several of the 15 states where 29 state Supreme Court judgeships are up for grabs on Nov. 2, key interest groups are arrayed against each other. Business, medical groups and Republicans are on one side; trial lawyers, unions and Democrats are on the other.

Among the judicial-election battleground states, Illinois and West Virginia offer the two most closely watched races for record-setting money and saturation advertising. In one race for Illinois Supreme Court, more than $5 million has been raised, smashing state and national records for a single state Supreme Court election.

By mid-October, candidates and some interest groups had raised a total $35 million, according to Justice at Stake, a nonpartisan Washington organization tracking judicial elections. That's already more than the $29 million mark of 2002 and coming close to 2000's $45 million.

To those pots of money and political fervor, add the explosive impact of the landmark 2002 U.S. Supreme Court decision Republican Party of Minnesota v. White, 536 U.S. 765, which says judicial candidates can't be barred from announcing their views on issues.

Citing White, interest groups have been pressing candidates to answer questionnaires that seek to pin down would-be judges on controversial issues, ranging from abortion to taxes. Some candidates are answering, but many are declining, claiming state judicial rules still restrict them from taking positions.

SPECIAL INTERESTS' NEW TACTIC

Now comes the interest groups' new tactic: Multistate litigation. Interest groups have filed suits in federal courts, attempting to force states to throw out overly broad judicial campaign rules.

The groups filing the suits -- anti-abortion and other conservative organizations -- seek injunctions before the Nov. 2 elections in Kentucky, North Dakota, Indiana and Alaska.

Lead counsel in all four cases is James Bopp Jr. of Bopp, Coleson & Bostrum in Terre Haute, Ind., who was the winning lawyer in White. So far, Bopp is 1-for-1. He scored an injunction in Kentucky; however, an Indiana judge declined to issue one.

The litigation is meant to pressure judicial candidates, said Bopp. "No more hiding," he said. "You have views and we know they influence you. Voters have ... the power to select you. It's time for you to let them in on the secret."
The upshot of the litigation could undo rules aimed at keeping the judiciary impartial in states that choose judges in contested elections, critics said.

Long-standing judicial conduct rules "die hard," said Charles Geyh, Indiana University law professor and a member of an American Bar Association commission examining judicial conduct rules. "Most people in the profession don't want to see them die." Yet special interests are "beating the drum," pushing judges to commit, he said. "That's going to continue."

SUPREME COURT ADS SPREAD

In 2004, more states have seen advertising in Supreme Court races than ever before, according to the Brennan Center for Justice at New York University School of Law, which tracks judicial elections and advocates reform. Two weeks before Election Day, ads had run in 15 states, a steady increase since 2000, when ads ran in four states, and 2002, when they ran in nine, the Brennan Center found.

Abundant ads and money are putting the Supreme Court race in Illinois on top this year.

About two weeks before the election, the candidates had reported raising about $5.2 million, well above the $3.5 million spent on an entire 2000 Illinois Supreme Court campaign, said Mary Schaafsma, who follows judicial elections for the Illinois Campaign for Political Reform, a Chicago group claiming neutrality. The fund raising is a new national record for a single Supreme Court race, beating Alabama's $4.4 million raised in 1996, she said.

"The Supreme Court race in Illinois is at the top of the list for the business community," said Sean McBride, vice president of the U.S. Chamber of Commerce's Institute for Legal Reform. The group studies judicial candidates, determines which ones are in favor of restricting liability for corporate defendants and conducts "voter education" programs in the hopes of getting tort-reform-minded judges on the bench, he said. "It seems like the trial lawyers are doing their thing and the business community is doing its thing," McBride said.

The race is between Republican Lloyd Karmeier, a trial judge, and Democrat Gordon Maag, an appeals court judge, who seek an open seat representing the southern Illinois district containing Madison County. The trial court there, reviled by businesses and their defenders, has become notable for its abundant class action litigation.

"Special interests are totally vested in this" election, said Schaafsma, with the Illinois Campaign for Political Reform.

The group estimates that national tort reform groups, such as the U.S. Chamber of Commerce and the American Tort Reform Association, have contributed more than $1 million to Karmeier via the Illinois Civil Justice League. Karmeier is also getting money from state medical and insurance groups. Maag is heavily supported by the state Democratic Party, which has received hundreds of thousands of dollars from personal injury lawyers, she said. Of $3.5 million in contributions to the party since July 1, at least $1.4 million of that came from trial lawyers, she said.

Notably, the Illinois ads are not about tort reform, Schaafsma said. Instead, ads praise the candidates as pro-doctor and pro-family while ripping and misrepresenting the opponent's rulings, she said. There have been allegations that Maag supporters rummaged through Karmeier's trash. The Illinois State Bar Association's committee monitoring judicial campaigns has been busy trying to sort it all out. (Illinois is among the 10 states with independent committees monitoring judicial elections and issuing rebukes when advertisements offend, according to the National Ad Hoc Advisory Committee on Judicial Campaign conduct.)

The U.S. Chamber of Commerce won't say whether it is involved in the Illinois race. McBride would say only that there are 20-some states, including Ohio, where the chamber is involved in Supreme Court or attorney general races.

"We go into places where we can make a difference," he said, refusing to elaborate. "It doesn't help the purpose of our program to give too much information."

CLASHES IN WEST VIRGINIA

Similar foes are clashing in West Virginia, which, like Illinois, has partisan elections.

But in West Virginia, outside groups have launched their own ads attacking Democratic Supreme Court of Appeals incumbent Warren McGraw and his challenger Brent D. Benjamin, a Republican who practices at the corporate defense firm Robinson & McElwee in Charleston.

Bankrolled with $2.5 million, an independent group called "And for the Sake of the Kids" has run a series of television ads criticizing McGraw for a ruling on a case involving a child molester, the Brennan Center reports. The main contributor to the group is an executive of a coal company that's a big employer in the state. Critics have alleged that the coal company, Virginia-based Massey Energy Co., is involved in several suits that could come before the West Virginia high court.

The independent group also has sponsored billboards supporting Benjamin.

Meanwhile, West Virginia Consumers for Justice, funded by trial lawyers and labor unions, has run a $1 million campaign of four ads. The group calls Benjamin the business community's pawn.

As of mid-October, West Virginians had seen a barrage of 26 ads by these and other groups, including the West Virginia Citizens Against Lawsuit Abuse and the West Virginia Chamber of Commerce, plus the candidates' own ads.

The air war has been running since the primary, when the chamber and other business groups were supporting McGraw's Democratic challenger. The state chamber also was fully engaged during the primary, running a series of ads that blamed the state high court for West Virginia's economic problems.

BOPP'S BEEF

While Illinois and West Virginia battle over tort reform, the issues are different for campaign-law litigator Bopp, general counsel to the National Right to Life Committee.

Central to Bopp's argument in all four campaign lawsuits is the claim that some states wrongly minimized the effect of the White decision on their judicial campaign rules.

After White, the ABA rewrote parts of its Model Code of Judicial Conduct, notes Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society. And that prompted Supreme Courts in Alabama, Arizona, California, Georgia, Louisiana, Minnesota, Nevada, New Mexico, Pennsylvania and Texas to change their rules. Some state Supreme Courts noted that their rules were not affected by White.
White addressed only "announce clauses" that banned candidates from announcing views on controversial issues. Eight states had announce clauses.

Most states with judicial elections have other rules barring candidates from making "pledges" or "promises" to rule a certain way in cases, or from "appearing to commit" to ruling a certain way. These rules were not at issue in White.

Bopp's main contention is that these campaign rules are too broadly written and applied. States are using them to prevent talk about issues, he said.

The analysis in White is "fully applicable" to other judicial campaign rules, he argued successfully in the Kentucky case.

State Supreme Courts that have not come to grips with White are "in denial," he said. Many states are "very hostile to judicial campaigning and judicial speech," he said. "There is really a rigorous rear-guard action being fought."

Under White, a judicial candidate may permissibly say, "I'm a pro-life candidate" or "Roe v. Wade was wrongly decided," Bopp said.

He agrees that rules should correctly prohibit a candidate from actually pledging or promising to rule a certain way on a case. For example, it would be wrong to say, "I will overturn Roe v. Wade when it comes before the court."

At issue in the Kentucky case, Family Trust Foundation of Kentucky v. Wolnitzek, No. 6: 04-473-DCR (E.D. Ky.), is a rule that says a candidate may make no pledge or promise other than to perform the job faithfully. Bopp argues that the rule should be rewritten to say: A candidate may not make a pledge or promise of certain results in a particular case.

Bopp's four suits -- Family Trust; North Dakota Family Alliance v. Bader, No. A3-04-115 (D.N.D.); Alaska Right to Life PAC v. Feldman, No. A04-239-CIV (RRB) (D. Alaska); and Indiana Right To Life v. Shepard, No. 4:04-CV-00071-AS-APR (N.D. Ind.) -- are by no means the only litigation over judicial campaign conduct rules post-White.

Cases challenging the constitutionality of various state rules have been won by judicial candidates in Ohio, Georgia and New York. Under these court decisions, candidates can affiliate with parties, personally solicit funds, and seek and give other partisan candidates' endorsements.

Though the Whites20 decision unleashed rules for judicial campaigning, the case is still pending, and, once concluded, could have an even larger impact, Bopp argued.

Last week, the entire bench of the 8th U.S. Circuit Court of Appeals heard the remand of White to decide the constitutionality of five other judicial rules that were part of the original suit but not at issue on appeal. Still unresolved are whether Minnesota can ban a judicial candidate from engaging in fund raising personally or affiliate with a political party, and whether a candidate can seek and offer endorsements. Bopp argues they all should be struck.

The Bopp litigation is not about judicial speech, said Roy Schotland, judicial selection expert and a professor at Georgetown University Law Center. It's to help special interest groups facilitate litmus tests on judges, he said.

"It isn't about speech. It's about abortion. That's what White was all about."
Bopp replies: "What's the matter with that?" he said. "I thought that's what elections were all about. It's about citizens choosing candidates that reflect their values."