How Dark Money-Fueled Judicial Elections Corrupt Our Courts

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Scene from an ad attacking the controversial Wisconsin Supreme Court Justice David Prosser. According to Mother Jones, the ad, by the liberal Greater Wisconsin Committee, ran nearly 1,100 times at an estimated cost of $475,000.(Image: YouTube screenshot)

Scene from an ad attacking the controversial Wisconsin Supreme Court Justice David Prosser. According to Mother Jones, the ad, by the liberal Greater Wisconsin Committee, ran nearly 1,100 times at an estimated cost of $475,000.(Image: YouTube screenshot)

Here’s how you become a judge in France: First, you get a law degree. That’s not easy — on average, about two-thirds of students fail during the first two years of the three-year program. Then you get a master of law degree. If you pass additional oral exams, you then become eligible to take a four-day written examination that one French judge described to The New York Times’s Adam Liptak as so grueling that it “gives you nightmares for years afterwards.” In some years, as many as 95 percent of candidates fail that exam, according to The Times, and the few who do survive are then admitted into a 27-month training program at the École Nationale de la Magistrature — an elite institution that trains judges in the finer points of French law. Those who make it through that program may then be recommended for an appointment to the bench by an independent body of current and former judges charged with sheltering the process from the influence of partisan politics.

The citizens of France, like those of most other countries, would be shocked to learn that in 39 US states, some or all judges earn their place on the bench by winning an election — often a partisan one. In some courts, they don’t even need to be lawyers. We take our process for granted, but it’s virtually unheard of in the rest of the world.

“A simple explanation for our findings is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people.” -Stephen Choi, G. Mitu Gulati and Eric Posner
A 2007 study by scholars at the University of Chicago Law School posited that appointed judges write fewer opinions than elected jurists, but they tend to be of a higher quality. “A simple explanation for our results,” wrote Stephen Choi, G. Mitu Gulati and Eric Posner, “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people.”

But the larger problem with this process is that it invites conflicts of interest. Last year, the American Constitution Society, a judicial watchdog group, released a landmark study, “Justice at Risk,” linking campaign contributions to judicial rulings. A team of researchers “collected and coded data on more than 2,345 business-related state supreme court published opinions” from all 50 states between 2010 and 2012. They then matched those data to campaign finance records. The study found “a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.”

The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.

The study noted that campaign donations from the business community appeared to have a greater effect on rulings by Democratic judges. The authors theorized that this may be the result of Republican jurists already having an ideological instinct to side with corporate interests, whereas Democrats needed some encouragement.

North Carolina provides a case study of how politicizing the courts can play out in the real world. The state, one of the most polarized in the country, has become ground zero for big-money campaigns to influence the judiciary. And a study released last month by John Echeverria, a professor at Vermont Law School, found that the North Carolina Supreme Court hasn’t sided with environmental interests over business even once in the past 15 years.

Throughout this period, the Court (which is nominally nonpartisan) has been dominated by conservative justices generally aligned with the Republican Party. In 2012, in a hard fought contest for control of the Court, Republican Paul Newby narrowly prevailed over Democrat Sam Ervin IV; independent expenditures in support of Newby outpaced those in support on Ervin by a margin of 8 to 1, with Newby’s support coming from American for Prosperity (a recipient of Koch brothers funding), Justice for All NC (funded by the Republican State Leadership Committee), and the North Carolina Judicial Coalition (with major funding from the NC Chamber of Commerce and parent company of R.J. Reynolds Tobacco). In 2014, the three Democrats on the Court all face stiff challenges for reelection.

Last month, two Emory University legal scholars released another study which found that races that featured lots of television ads attacking judicial candidates for being “soft on crime” correlated with an increasing likelihood that state supreme court judges would rule against criminal defendants.

This isn’t an area where democracy serves the public interest. On the campaign trail, judicial candidates avoid talking about how they might rule on controversial issues, and voters don’t have enough information to understand the fine points of candidates’ judicial philosophies. It comes down to soundbytes, ads attacking one’s opponent and name recognition. According to a report by Justice at Stake and the Brennan Center for Justice, judicial races that once featured a certain amount of decorum have devolved into a process that is “alarmingly indistinguishable from ordinary political campaigns—featuring everything from Super PACs and mudslinging attack ads to millions of dollars of candidate fundraising and independent spending.”

Justices Breyer and Kennedy on Money in our Courts
Spending on judicial races began growing in the 1990s, when the business community saw an opportunity to shape the judicial landscape. Ad spending alone for judicial candidates skyrocketed over the past 10 years — from under $10 million in the 2001-2002 cycle, to over $33 million in the 2011-2012 elections, according to the report. In the wake of Citizens United, observers expect a new record for spending on judicial races to be set this year.

And as the flow of outside money has increased, so too has the amount of time judges spend electioneering. The Wall Street Journal reports that “the money pouring in from out-of-state groups is upsetting genteel traditions under which judges… avoided the ethically tricky process of soliciting big money and stumping for votes from constituents they might face in court.”

Today, the emergence of dark money is only compounding the problem. In Kansas, a group called Kansans for Justice emerged just weeks before the 2014 midterms, with the goal of defeating two sitting Supreme Court Justices in what are usually uncontested retention elections. But as Robert Faturechi reports for ProPublica, “the disclosure requirements imposed on groups that try to influence other types of races don’t apply because Supreme Court justices are not included in Kansas’ legal definition of “state officers.”

The unexpected emergence of Kansans for Justice… has exposed a loophole in the state’s campaign finance rules: Even though the group has all the hallmarks of a political committee – it is soliciting contributions, plans to send mailers and has an explicit electoral goal – it’s not required to report anything about its leadership, donors or spending.

Electing judges, especially in a partisan process, effectively undermines the separation powers. Instead of having two political branches with an ostensibly neutral arbiter between them, it politicizes government as a whole.

In North Carolina, the Justice for All NC PAC is mostly funded by the Republican State Leadership Committee in Washington, DC — a group that supports conservative candidates for state legislatures. National Journal’s James Oliphant reports that the Republican State Leadership Committee launched a new project this year called the Judicial Fairness Initiative, which is “directed toward electing to the bench conservatives who can safeguard GOP legislative victories.” The line separating the legislative and judicial branches is blurring.

And choosing judges according to a popularity contest diminishes their independence. It forces them to keep one eye on the law and another on what’s politically popular. A year after the Iowa Supreme Court allowed same-sex couple to marry in 2009, conservative activists organized to defeat three of the justices responsible for the decision. But the campaign wasn’t made up of furious Iowans; the Associated Press reported that it was “bankrolled by a conservative Mississippi-based group, and… the campaign’s organizers are trying to mask it as a local campaign.”

That sent a loud message to other jurists. “The decision is expected to echo to courts throughout the country, as conservative activists had hoped,” read a report in the Des Moines Register.

It may get worse. Andy Kroll reports for Mother Jones that there’s a case pending before the US Supreme Court, Lanell Williams-Yulee v. the Florida Bar, which “could inject even more politics into judicial races.”

A county-level judge wants the nation’s high court to strike down laws in 30 states blocking judges from personally asking donors for campaign cash. In those states, treasurers and fundraising consultants typically make the ask on behalf of a judicial candidate. Only nine states currently allow judges to solicit donations directly for their campaigns, but in those states, “the road to victory begins with the solicitation of money,” Wallace Jefferson, the former chief justice of the Texas Supreme Court, has written. “The ‘ask’ is undignified, and the ‘give’ is fairly compelled.”

But it may be that the greatest damage has already been done — to Americans’ confidence in their judicial system. Members of the bar are not only supposed to avoid actual conflicts of interests, but also the appearance of conflicts. A 2009 Gallup poll found that nine out of 10 voters believed the influence of campaign contributions on judges is a problem, and a 2010 Harris poll found that over 70 percent of respondents thought that campaign contributions influence courtroom decisions.

With the explosion of high-stakes, big-money judicial races, it should come as little surprise that fewer than three in 10 Americans express a “great deal” or “quite a lot” of confidence in both our criminal and civil legal systems.

Joshua Holland was a senior digital producer for BillMoyers.com and now writes for The Nation. He’s the author of The Fifteen Biggest Lies About the Economy (and Everything Else the Right Doesn’t Want You to Know about Taxes, Jobs and Corporate America) (Wiley: 2010), and host of Politics and Reality Radio. Follow him on Twitter: @JoshuaHol.

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