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Fair Courts
By Monique Chase – 09/15/08
In a CNBC interview last week, Don Blankenship, CEO of Massey Energy Co., answered questions stemming from a recent decline in his company's stock. When asked to respond to a New York Times editorial highlighting Massey's legal trouble and his suspect dealings with the West Virginia courts, the CEO dismissed the facts as skewed, and would not acknowledge that his actions posed any conflict of interest.
(For more background on this case, we have written on Blankenship's campaign contributions and questionable relationship with judges HERE and HERE)
While it is unclear how Blankenship managed to keep a straight face during the interview while denying that even the perception of a conflict of interest exists—even the news anchors on the pro-business CNBC appeared to find Blankenship's answers unsatisfactory—what is clear is that events like these make it increasingly difficult, if not impossible, for state courts to preserve public confidence.
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Tags: Democracy, Fair Courts, Judicial Advertising, State Judicial Elections
By Ciara Torres-Spelliscy – 06/10/08
Cross-posted from a Seattle Post-Intelligencer piece.
Whenever I admit to fellow guests at a dinner party that I work as a campaign finance lawyer, the following happens. Either their eyes glaze over, hoping for a rapid change of topic, or they launch into a heated discussion of why the case that decided "money is speech" is so wrongheaded—since after all, money is, well, money, and speech is something else entirely. Sad to say, the justices on the U.S. Supreme Court seem to be losing their grasp on this simple point.
Contrary to popular opinion, the landmark case, Buckley v. Valeo, never actually equated money with speech. Instead, the opinion analyzed political campaigns and concluded that lots of money is needed to get a candidate's message to voters. Buckley used gasoline as a metaphor for campaign cash. The fuel of contributions makes the campaign car go.
As Justice Stephen Breyer once wrote, "a decision to contribute money to a campaign is a matter of First Amendment concern not because money is speech (it is not); but because it enables speech." Despite this truth, the bumper sticker version—"money is speech"—has seeped into our collective unconscious.
> Read entire article here.
Tags: Democracy, Campaign Finance Reform, Fair Courts
By Monique Chase – 06/04/08
"Brace
yourselves for the most ugly and expensive state Supreme Court election in
Wisconsin's history in 2009," warns Jay Heck, director of Common Cause
Wisconsin. In his Capital
Times op-ed, Heck takes shots at Wisconsin's legislature for failing to act
on a campaign finance reform bill, and accuses the group of quietly, "smothering
it with a pillow" during its special legislative session.
Heck's
brashness is understandable. Forget about the fact that Governor Jim Doyle
called the special session specifically
in the interests of campaign finance reform. Recent candidate special interest spending
in Wisconsin's last two judicial election cycles, makes clear that, now, more
than ever, comprehensive campaign finance reform is needed in the state.
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Tags: Democracy, Campaign Finance Reform, Fair Courts, Judicial Advertising
By Thaddeus Kromelis – 05/16/08
It appears supporters of impartial courts are learning their ranks may be larger than expected.
On the heels of this week's ousting of Justice Maynard from West Virginia's high court, news appeared in the Charleston Gazette that the multi-million-dollar mining lawsuit which landed the jet-setting judge on the wrong side of Mountain State voters (deftly unpacked here by Maggie Barron) could be heading before the U.S. Supreme Court if one of the litigants gets its way.
Yesterday, it came to light that Theodore Olson, former Solicitor General and the man who successfully represented President Bush in Bush v. Gore, is representing Harman Mining Co. in asking the U.S. Supreme Court to hear their appeal.
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Tags: Democracy, Fair Courts
By Maggie Barron – 05/15/08
It takes a lot for a sitting Supreme Court justice to lose
an election, but Elliot Maynard managed. On Tuesday, as the
New York Times reports, the chief
justice of West Virginia's
Supreme Court lost his re-election bid, though he began as the clear favorite
and despite the fact that he had raised the most money.
The trouble for Maynard's campaign started back in January, when
photos surfaced of the Chief Justice (on the left), in 2006, enjoying a vacation on the
French Riviera with none other than Don Blankenship, the chief executive of one
of West Virginia's
largest mining companies. A harmless, jet-setting friendship? Well, Blankenship
happened to have a multi-million dollar
case pending before Maynard's court at the time. A few months later, Maynard
voted with the majority in the 3-2 decision to overturn a $50 million judgment
against Blankenship's company.
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Tags: Fair Courts, Independence & Accountability, State Judicial Elections
By Bethany Foster – 05/09/08
Cross-posted from Gavel Grab
As Bert Brandenburg noted earlier this week, the Fourth Circuit delivered some good news for public financing advocates last Thursday by unanimously upholding North Carolina's system of public funding for judicial campaigns. This is a major victory for citizens concerned about fair and impartial courts.
The North Carolina decision is one of multiple recent developments on the public financing front. On the same day that the Fourth Circuit issued its decision, plaintiffs in Arizona filed an amended complaint against the matching funds provisions of that state's public funding program for statewide and legislative races. The case is back in the District Court after going up to the Ninth Circuit and then getting remanded.
Finally, in late March, a federal district court judge dismissed the core challenges to Connecticut's public financing law, ruling that the matching funds provided by that system do not violate the free speech rights of non-participating opponents and independent spenders.
Read the rest of this post here.
Tags: Democracy, Campaign Finance Reform, Public Financing, Fair Courts
By Maggie Barron – 04/09/08
Retired Supreme Court Justice Sandra Day O'Connor encouraged her staff to enjoy whitewater rafting, Mexican take-out brunch and tours of the Smithsonian. Justice Stephen Breyer loves to read French manuscripts and cultivated his distaste for footnotes during his clerkship to Arthur Goldberg. Such details were plentiful as Professor John Feerick introduced Justice O'Connor and her former colleague Justice Breyer to a well-heeled audience of lawyers and law students at Fordham Law School yesterday morning.
The two justices, and co-hosts of the day's symposium, sat together at a small table for their introductory panel, "Judicial Independence and Impartiality." Sandra Day O'Connor, dressed in a violet suit with gold buttons, her blonde hair now a shock of snowy white, frowned as she tried to twist the top off her water bottle, then leaned over towards Breyer and held it out to him. He wordlessly took it, unscrewed the top, and handed it back.
Sally Rider, Director of the William Rehnquist Center at the University of Arizona, kicked things off with a series of questions. Why, she asked O'Connor, did she decide to convene this conference on judicial independence in the first place?
O'Connor said she remembered seeing "Impeach Earl Warren" signs in New Mexico and Arizona when she was growing up, and said that in her final years on the Supreme Court, attacks on judges increased, including proposals for mass impeachments of judges involved in the Terri Schiavo case, or proposals to cut judicial terms short, or a particularly disconcerting movement towards "Jail4Judges," a campaign to allow citizen panels to review rulings from the bench, with the ability to even imprison—as the name tantalizingly implies—those who made bad decisions. These developments were "very depressing," she said, and so she decided to use her retirement to call attention to these attacks on judges.
"An independent judiciary is an essential bedrock principle, and we're losing it." The reason was in part the fact that civics and government are not a requirement for high school graduation. "One third of Americans can't name the three branches of government, but two thirds can name a judge on American Idol!"
Money has been pouring in to state judicial elections in recent years, including races for State Supreme Court justices. A 2004 campaign for a seat on the Illinois Supreme Court brought in a record-setting $9.3 million in political contributions, including hundreds of thousands of dollars from State Farm, a company with a case pending before the court. And just recently, Wisconsin voters were subjected to over 11,000 televised campaign ads in the weeks before their state's Supreme Court race, over ninety percent of which were purchased by special interest groups (racking up a bill of well over 3.6 million dollars). Said O'Connor, "We put cash in the courtrooms, and it's just wrong." She then pointed to the room of lawyers and students. "You should take this seriously." (A later panel backed up O'Connor's concerns. New York Times legal correspondent Adam Liptak, Brennan Center attorney James Sample and Professor Michael Dimino discussed evidence that judges tend to rule in favor of their campaign contributors.)
She went on. "No other nation in the world elects judges." She pointed to Georgina Woods, the chief justice of Ghana, sitting in the front row, as if to illustrate her point.
"Why are we tolerating this? What are we going to do about it?" Then, seeming to remember that the initial question posed to her several minutes before was "why did you convene this conference," she added, "That's why," and sat back in her chair. The audience laughed and applauded.
Breyer took the floor next. Keeping state courts impartial is a major issue, but try talking about it with people "and they're asleep after five minutes." He recounted a trip to Russia he had made when serving as an appellate judge for the First Circuit after he was appointed by Carter. Meeting with Russian judges from across the country, he was surprised to hear their accounts of "telephone justice," when the party boss calls and tells judges which way to vote. "They asked me, ‘do you have telephone justice in the United States,' and I had to explain to them that no, the President wouldn't call you. He'd be crazy to do that."
More and more people today think that judges make decisions based on politics rather than the law, he added. O'Connor began to interrupt, then changed her mind. "No, no," she said, waving her hand at him, "you tell them."
He continued. "It's extraordinary that three hundred million people have agreed to settle disputes using the law, not sticks and stones on the street, like they do in some places."
Sally Rider asked what people who are concerned about judicial independence can do. "It takes concerned citizens" said O'Connor. And it takes activism from the business community, because "legislators will listen to them more than the average housewife." Breyer said this was a difficult message to get across to people. "That's why the people I like talking to the most are 9th and 10th graders, because they want to know about this stuff."
He encouraged the audience to get involved any way they could—writing to newspapers, or volunteering at schools to talk about the law. "Our method of resolving disputes in this country, what a treasure it is."
"That's a good place to stop," O'Connor nodded. "I totally agree."
Tags: Democracy, Fair Courts
By James Sample – 03/22/08
(cross posted from The Wall Street Journal):
Certain American values transcend partisan divisions. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice.
This is not a matter of red versus blue. Seventy-six percent of Americans believe that campaign contributions influence judicial decisions, according to a 2001-2002 survey by Greenberg Quinlan Rosner Research and American Viewpoint; 46% of state court judges agree, according to a written survey by the same organizations. Separate recent empirical studies in the New York Times and the Tulane Law Review support the proposition that contributions not only correlate with decisions, but alter them.
John Grisham's latest bestseller, "The Appeal," is a shadowy tale of a chemical company that buys a favorable legal ruling by funding the election of the judge who makes it. Farfetched? Not according to West Virginia Supreme Court Justice Larry Starcher. In a scathing opinion last month, he decried a "cancer" of moneyed influence in his court, asserting that "John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."
Read the full Wall Street Journal piece here.
Tags: Democracy, Campaign Finance Reform, Fair Courts, Independence & Accountability, Judicial Advertising, State Judicial Elections
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