Here is the Brennan Center’s round up of last week’s Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Judicial Reform
On Friday, the Florida House voted along party lines to overhaul the state Supreme Court after Republican House Speaker Dean Cannon scaled back certain reform proposals that had met resistance, including one proposal that would have increased from 50 to 60 percent the approval vote required for a judge to be retained. The proposal advanced by the House would expand the court from seven to 10 justices and split it into two divisions — one civil and one criminal — but would not do away with Judicial Nominating Commissions. The GOP-led effort has sparked heated debate, both in the public arena as well as in the Senate, which has not voted on a companion bill. An editorial in USA Today deplores the proposal as a partisan court-packing attempt to control the judiciary, and a press release issued by the nonprofit court advocacy group Floridians for Fair and Impartial Courts urged the legislature “to retreat from an ill-advised attempt to seize control of Florida’s third branch of government.” Stephen N. Zack, president of the American Bar Association, struck a similarly cautionary note, stating that the proposal will not only “pack the state’s highest court with handpicked political friends,” of the governor, but will also raise court costs in the face of a widespread court budget crisis.
State Judicial Selection
Justice David Prosser declared victory in Wisconsin’s contentious Supreme Court election after a canvass of county vote tallies gave him a 7,316 vote lead. The vote margin, however, is within the 0.5 percent limit that will allow his challenger, JoAnne Kloppenburg, to request a statewide recount at taxpayers’ expense. Kloppenburg has not yet decided whether she will request a recount. With the final outcome of the race still uncertain, the implications of the election continue to be debated in editorials across the country. According to the Milwaukee Journal Sentineleditorial board, the 2011 election illustrates that because “politics has overwhelmed the process of choosing . . . justices,” the state should switch to an appointment system. Former Wisconsin Supreme Court Justice Janine Geske said the costly and negative 2011 election is proof that it’s time to change how Wisconsin justices are chosen. According to Geske, “candidates themselves have been drowned out by the independent ads and unfair and misleading ads.” A New York Timeseditorial agrees that special interest spending in the spring judicial election was out of control, and also says that “[a] merit panel should pick the state’s justices.” Finally, a special edition of Gavel to Gavel notes debates about the costs and benefits of judicial merit selection in numerous other states, and documents numerous proposals currently pending in state legislatures across the country to institute, alter, or abolish merit selection.
In an op-ed in Monday’s New York Times, Erwin Chemerinsky, Dean of the law school at the University of California, Irvine, and Hofstra law professor James Sample respond to calls to replace judicial elections with appointment systems by arguing that “judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.” The authors suggest that “[s]tates with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected,” and note that while the U.S. Supreme Court has rejected spending caps in the context of legislative and executive elections, the Court should hold that “the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”
Newly appointed Iowa Supreme Court Justice Tom Waterman defended the state’s judicial merit selection system during a panel discussion about judicial independence at St. Ambrose University. Justice Waterman compared Iowa’s merit system with Illinois’s judicial elections, noting that “[a]cross the river, millions of dollars are poured into races and lawyers and judges are making promises.” Meanwhile, the Iowa Senate rejected Governor Terry Branstad’s appointment of William Gustoff to the State Judicial Nominating Commission. Gustoff previously represented clients in a suit attacking the panel’s constitutionality, but has since withdrawn as counsel.
A Livingston Dailyeditorial urges the Michigan legislature to put a judicial selection reform plan presented by retired state Supreme Court Justice Elizabeth Weaver “on the front burner.” While the editorial does not unequivocally endorse Weaver’s reform proposals, it notes that Michigan’s highly partisan Supreme Court elections have become high-cost, highly contentious races that are undermining the judiciary.
Court Resources
The trial of a man accused of murdering his wife will be delayed because of budget cuts and courthouse layoffs throughout Alabama. After announcing 120 courthouse personnel layoffs effective May 1, Alabama Chief Justice Sue Bell Cob is also in the process of authorizing presiding circuit judges to shutter court offices for one day each week if needed. The personnel cuts mean that Jefferson County Courthouse does not have enough bailiffs and court officers to keep it secure for the aforementioned murder case. As courtrooms across the nation struggle to adjust to funding shortfalls, the Kansas Supreme Court Chief Justice Lawton Nuss expressed a mixture of frustration at the challenges facing the Kansas judiciary, and pride at the courts’ resilience. According to Nuss, “[t]his is a very difficult time for the judicial branch, but it’s been most gratifying to see how judges and employees have pulled together.”
Last Tuesday, voters went to the polls in Wisconsin. On Wednesday, with only 204 votes separating the two candidates in the state Supreme Court race, JoAnne Kloppenburg declared victory over incumbent Justice David Prosser. As voters were still reeling from the costly, controversial, and negative campaigning that defined the Supreme Court race, they received another bombshell — the Waukesha County Clerk discovered an error in her reporting. Votes from the city of Brookfield, which went heavily toward Prosser, were not included. Now, Prosser leads by more than 7,000 votes, and it looks like he will pull out the win.
Although the results are still not official, one thing is — this election set a new record for special interest spending on television ads in a Wisconsin judicial race, with five groups spending just under $3.6 million on ad buys before the election. This tops the previous record of $3.38 million, which was set in the notorious 2008 election between now-Justice Michael Gableman and then-Justice Louis Butler. Of the approximately $3.6 million spent this year, one liberal-leaning group, seeking to elect Kloppenburg, spent an estimated $1.36 million. Four conservative-leaning groups, seeking to re-elect Justice Prosser, spent a combined $2.21 million.
Under Wisconsin campaign finance law, special interest groups are only required to disclose spending on political communications if they expressly advocate for the election or defeat of a candidate — by using so-called “magic words” like “vote for,” “elect,” “vote against,” or “defeat.”Advertisements that use these magic words represent only a tiny fraction of all political spending, however, and groups can easily avoid disclosure requirements by running issue ads that are understood by voters as an appeal to vote for or against a candidate, but don't use the magic words, and therefore don't have to be reported.
The “Pedophile Priest” ad aired by the Greater Wisconsin Committee was one of the most controversial ads of the election, alleging that Justice Prosser failed to adequately prosecute a sex offender when he was a prosecutor three decades ago.
This ad was not considered express advocacy, and therefore while its message of support for JoAnne Kloppenberg was unmistakable — Prosser supporters demanded that Kloppenberg denounce the ad — the GWC was not required to report this expenditure.
Similarly, ads attacking Kloppenberg, which urged voters to call her to “tell her being weak on criminals is dangerous for Wisconsin families,”were not subject to disclosure requirements.
Because there is no required authoritative reporting of independent spending, the Brennan Center for Justice does not seek to quantify all spending by independent groups. Instead, we track spending on TV advertisements as a way to estimate the volume of special interest spending because we are able to get consistent, reliable data that allows us to compare spending trends from year to year (and state to state). This data is provided by TNS Media Intelligence/CMAG, which captures TV satellite data in the nation’s media markets and then estimates the costs of buying airtime based on the networks ads air on and the time of day they are broadcast. These calculations do not reflect ad agency commissions, the cost of producing advertisements, or airtime purchased on local cable networks that are not aired by satellite. Accordingly, these estimates are conservative, and underestimate the precise actual amounts of expenditures.
Here is the Brennan Center’s round up of last week’s Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Feature Story
The U.S. Supreme Court heard oral arguments today in McComish v. Bennett, a case challenging a component of Arizona’s public financing law that will have implications for public financing nationally. While critics contend that the “triggered matching funds” provision of the law violates free speech rights, numerous amicus briefs supporting the provision emphasize that public financing is essential to maintaining the integrity of elections. Several briefs highlighted the need for public financing in judicial elections in particular. In its amicus brief, Justice at Stake warned that the “deluge of special interest money is eroding public trust in America’s courts,” and described public financing laws such as Arizona’s as “one of the most powerful reforms in shielding courts from special-interest influence.”
State Judicial Elections
Wisconsin’s upcoming Supreme Court election between incumbent David Prosser and challenger JoAnne Kloppenburg continues to make headlines. Anger at Governor Scott Walker’s move to change the state’s collective bargaining provisions invigorated Kloppenburg’s base, and liberal-leaning organizations have began an ad campaign attacking Prosser for being a “rubber stamp” for Walker. The Greater Wisconsin Committee also launched a TV ad suggesting Prosser protected a priest accused of sexual abuse. During a debate held last Friday at the UW-Madison campus, Prosser decried the ad as “one of the worst, most untruthful and misleading ads that has ever been run in a judicial campaign.” Meanwhile, the conservative Wisconsin Manufacturers & Commerce Issues Mobilization Council (WMC) has initiated a fundraising drive to finance a “television ad campaign to counter the distortions from government unions and their allies about Justice [David] Prosser.” Wisconsin Supreme Court races have historically featured heavy special interest spending — in 2008 the partisan and costly Supreme Court election campaign, special interest group’s spending accounted for 89 percent of dollars spent on television advertising — and this year, as an editorial in the Racine Journal Times observes, “[t]he mud has indeed hit the fan…” The editorial goes on to question whether judicial elections are the right way to select judges and argues that judicial appointments would better preserve fair and impartial courts by eliminating the “taint of special interests.”
Judicial Reform
Last week the Arizona Senate approved a measure to eliminate the state bar’s role in selecting attorneys to serve on the state’s judicial screening commissions. Currently, the state bar nominates five attorneys to each of the 16-member commissions. The new proposal — which will be sent to voters in 2012 if approved by the House — would allow the governor to appoint all commissioners. The bill’s sponsor, Republican state Senator Ron Gould, said the measure is intended to ensure that a group of insiders don’t unduly influence who picks the state’s judges. An editorial in the Arizona Republic disagrees, however, arguing that the bill undermines Arizona’s successful merit selection process and threatens to compromise judicial independence by paving the way for “politically packed” commissions. Several other judicial reform proposals have been discussed in the state legislature, including a more comprehensive proposal — currently pending in the House — that would require Senate confirmation of all judicial appointments.
“This is a terrible, terrible bill that’s hated by the courts…I will not be a participant in changing our judicial selection to make it more political.” So stated Kansas Senate Judiciary Chair Tim Owens after House Republicans’ attempted to reinvigorate a proposal to replace the merit selection system of Kansas Court of Appeals judges with judicial appointments by the governor. Currently, in the event of a vacancy on the Kansas Supreme Court or Appeals Courts, the Nominating Commission sends three candidates to the governor for consideration. If the governor does not make a selection within 60 days, the Chief Justice of the Supreme Court makes the selection. A previous bill passed the House earlier this session but never progressed in the Senate. Representative Lance Kinzer amended the appeals court measure onto a current bill dealing with restriction that retired judges face when returning to the bench under special circumstances, such as judicial shortages.
Two bills seeking to advance merit selection for appellate judges in Pennsylvania were introduced by Republican state Senator Jane Earll and have been referred to the Senate Judiciary Committee. According to a blog run by the nonprofit Pennsylvanians for Modern Courts, the diverse coalition of groups and individuals supporting the initiatives includes several retired judges. The group previously argued that the highly publicized corruption trial of former Pennsylvania Judge Mark Ciavarella — in February Ciavarella was convicted on 12 counts, including racketeering and conspiracy — provides evidence that the state needs to get judges “out of the fundraising business” by adopting merit selection.
Recusal
A commentary by Brookings Institution Fellow Russell Wheeler argues that recent proposals to apply the United States Judicial Conference’s Code of Conduct for U.S. Judges to members of the Supreme Court are misdirected and could irreparably harm the judiciary. Criticism of Supreme Court Justices’ for engaging in activity that could cast doubt on their impartiality — most recently, Justices Antonin Scalia and Clarence Thomas received negative press after attending events sponsored by conservative interest group s— prompted calls for Congress to establish clear “mandatory” ethics and recusal guidelines for Supreme Court justices. However, while Wheeler agrees that the Court could benefit from increased transparency surrounding recusal decisions, he worries that creating a means by which litigants may appeal a Supreme Court Justice’s decision would “take the judiciary into uncharted territory, creating a cure that could be worse than the occasional problems created by the status quo’s lack of transparency.”
Attacks on the Judiciary
“The retention vote and accompanying drama has been a good impetus for a discussion about the role of courts, and importance of fair and impartial judiciary.” So believes Justice Thomas Waterman, one of the three new Iowa Supreme Court Justices, appointed after voters ousted three justices last November in response to the high court’s decision permitting same-sex marriage. While the three newest justices on Iowa’s high court have stated they would prefer to refrain from campaigning, they will do so if necessary to win approval on the retention ballot in 2012. The political landscape of the 2012 elections is uncertain, however increased special interest spending and the politicization of judicial elections indicate they will continue to grow “noisier, nastier, and costlier.” Meanwhile, speaking to a group in Iowa, Representative Michele Bachmann of Minnesota condemned activist judges as “black-robed masters” and congratulated the audience on removing three incumbent justices from the bench last November.
Here is the Brennan Center’s weekly round up of Fair Courts news, where we recap stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.It is a summary of the Brennan Center's Fair Courts E-lert, which goes out weekly and is available on our website.
Feature Story
“Nothing could be more important for the judiciary than to have the public see that we’re neutral arbiters of disputes. If we don’t have that, we don’t have anything.” So said New York's Chief Judge, Jonathan Lippmann, explaining the need for a proposed new judicial disqualification rule. Chief Judge Lippmann announced the new rule — which will prohibit elected judges from hearing cases involving parties or lawyers who gave $2,500 or more to their campaigns in the prior two years — in his state of the judiciary address on Tuesday. The rule also ensures that neutral decision-makers — in this case, court administrators — rather than the individual judge, make the recusal decision. Concerns have beenraised about the rule’s silence on independent campaign expenditures and the possibility that it would open the door to gamesmanship and judge-shopping.
State Judicial Selection
Incumbent Justice David Prosser and challenger JoAnne Kloppenburg advanced in Tuesday’s primary election for a seat on the Wisconsin Supreme Court, and will compete in the general election on April 5. Both candidates accepted public financing, but special interest spending may dominate in the general election, given the court’s current 4-3 ideological breakdown and recent trends in outside group spending in judicial elections. In the primary contest, the conservative Wisconsin Club for Growth spent more on TV advertising than all four candidates combined — 70 percent of all TV spending, according to the Brennan Center.
The Oklahoma Supreme Court rejected a challenge to the state’s judicial nominating commission this week. The commission’s membership is selected from six regions based on Oklahoma’s previous six congressional districts, but since 2002, the state has had only five congressional districts. The nominating commission came under scrutiny when outgoing Governor Brad Henry chose to appoint District Judge Noma Gurich to the state Supreme Court. Gurich — who stated she would not take her seat until the constitutional challenge was resolved — has not yet been sworn in, but the Supreme Court upheld her appointment, ruling “that the commission’s decisions are valid when decided by a majority of its members” regardless of any changes to the state’s congressional allocation.
Several states are debating whether mandatory disclosure of judicial candidates’ party affiliations promotes transparency or injects politics into the judiciary. A bill recently introduced in the North Carolina legislature would restore party labels starting in 2012 for candidates for District Court, Superior Court, Appellate Court, and the state Supreme Court. Former North Carolina Supreme Court Justice Bob Orr said an appointment-retention system would be a better way to insulate judges from politics. Similarly, a proposed referendum for the 2012 ballot in Montana would require candidates for district court judgeships and the state Supreme Court to run with partisan labels. Currently, judicial elections in both states are nonpartisan, but supporters of the Montana proposal argue that party labels guarantee voters are aware of judges’ “individual biases.” Meanwhile, a bill in Missouri — which is nationally recognized for the appointment-retention system under which most of its judges are chosen — would institute nonpartisan elections for any judgeships not covered by the merit selection system.
Judicial candidates in Alabama raised more money in 2010 than counterparts in any other state, prompting several editorials to criticize the state’s judicial elections. The Anniston Star compares Alabama’s Supreme Court races to a “figurative walk down the Las Vegas strip: All lights, all flash — and all about money,” while the Mobile Press-Register worries high levels of campaign fundraising and special interest spending create an impression that justice is for sale.
Diversity on the Bench
State Supreme Courts continue to make strides toward greater diversity. In Hawaii, the senate confirmed Judge Sabrina McKenna to the bench on Wednesday, making her the state’s first openly gay high court justice. Meanwhile, on the same day, Justice Cynthia Kinser was sworn in as the first female chief justice of the Virginia Supreme Court.
The Federal Judiciary
Both the House and Senate introduced legislation to establish an independent office charged with investigating judicial ethics violations. Both versions of the bill limit the inspector general’s mandate to investigate judicial ethics violations — rather than reviewing or investigating the merits of specific legal decisions — to insure the new office does not undermine the independence of the judiciary. The Senate version would grant the inspector general power over the Supreme Court — the House version would not. Meanwhile, Rep. Christopher Murray, (D-CT), plans to introduce legislation to require Supreme Court justices to disclose their reasons for recusing themselves from hearing a case. The bill will also require the high court to formalize a procedure through which parties can “request the court to decide whether a particular justice has a conflict of interest.”
Here is the Brennan Center’s weekly round up of Fair Courts news, where we summarize stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary.
Diversity on the Bench
Several state Supreme Courts have made strides in terms of judicial diversity, according to the American Judicature Society: in 2011, New Hampshire, Ohio, and Virginia have female Chief Justices for the first time, and three other states—California, Massachusetts, and Nevada—have minority Chief Justices for the first time.
President Obama nominated former Clinton administration lawyer J. Paul Oetken for a judgeship in Manhattan. If confirmed, Oetken would become the first openly gay judge on the federal bench. In recommending Oetken for nomination, Senator Charles Schumer stated he was “shocked to learn there were no openly gay male judges on the entire federal bench.”
Federal Judicial Selection
White House Counsel Robert Bauer stated this week that the White House will push Congress to confirm more judges. There are 101 vacancies on the district and circuit courts. On Thursday the Senate Judiciary Committee sent 11 holdover nominees from the last Congress to the floor as a test of the informal bipartisan agreement to facilitate quicker confirmation of nominees.
State Judicial Selection
In response to Republican state Sen. Mike Bell’s proposal to replace the current merit selection system for Tennessee’s high court judges with contested elections, Tennessee Supreme Court Justice Gary Wade said, “A great judge is like a referee in a football game. To have one side or the other cheering for the referee is a little bit unseemly to me.” While Bell criticizes his opponents for “trying to protect the system that they control right now,” an editorial in the Tennessean contends that the current merit selection system works well and “instills trust” in the judiciary.
Former Michigan Supreme Court Justice Elizabeth Weaver continues to push for reform, saying that Michigan “need[s] transparency. Not a secret club of seven justices from the Detroit-Lansing beltway joining together to promote agendas of partisan or special interests.” Among other reforms, Weaver has proposed electing justices by district to generate geographic diversity and instituting public financing for judicial campaigns.
Judicial Ethics
A decision regarding Justice Michael J. Gableman’s dishonesty in a 2008 campaign ad sparked debate at a recent forum between Wisconsin Supreme Court candidates. Three candidates identified the court’s deadlocked decision as the one they most disagreed with, while incumbent Justice David Prosser defended his position that Gableman’s ad was protected by the First Amendment. This case is also responsible for substantial tensions between the sitting justices. Meanwhile, a Wisconsin State Journal editorial argues the state should switch to a merit selection system to improve public confidence in the high court.
Kentucky’s Judicial Conduct Commission charged Circuit Judge Daniel Ballou with two counts of ethics violations for donating to Sen. John McCain’s presidential campaign in 2008 and for sending an e-mail in 2010 about Rand Paul’s position on the 2nd Amendment. Although he denied the allegations of impropriety, the Commission ruled that Ballou’s actions run afoul of the state’s judicial ethical rules.
The Nevada Supreme Court affirmed a 2008 decision to remove Clark County District Judge Elizabeth Halverson from the bench. Judge Halverson will be permanently barred from the bench now that the Supreme Court has upheld the Commission’s finding that she behaved improperly during hearings, with jurors, and with court personnel.
Miscellaneous
Last week’s e-lert noted that amid concerns over budget restrictions, numerous state Supreme Court Chief Justices have used their state of the judiciary addresses to tout new technologies as a way to increase court efficiency. Accordingly, legislators across the country are advancing bills related to electronic court filings. An article on the Court Technologyblog discusses bills pending in Arizona, Oregon, South Dakota, Virginia and Wyoming.
Previous editions of the Brennan Center Fair Courts E-lert are available on our website.
The Brennan Center Fair Courts E-lert summarizes news stories and editorials related to the independence of judges and the courts, including material attacking, defending, and concerning the judiciary. -------------------------------------------------------------------------------------------------
Fair Courts E-lert
January 28, 2010
State Judicial Selection
1. The Iowa judicial nominating commission’s interviews of state Supreme Court candidates this week were open to the public for the first time ever. One candidate, Sixth District Chief Justice Patrick Grady, expressed support for the commission’s move, stating that, especially in light of November’s ouster campaign, judges “can’t afford to be a mystery any more . . . [because] when people don’t know how you operate, they get suspicious. And we all know what can happen then.” After deliberation, the commission forwarded nine finalists to Governor Terry Branstad, including five judges, three lawyers and a law professor. Branstad told The Des Moines Register that while he will inquire about candidates’ general philosophies, he will not ask for their views about particular cases, such as the unanimous decision legalizing same-sex marriage that spurred voters to oust three justices in November’s retention election.
2. “Within our system, judges are not supposed to represent specific constituencies. They are supposed to answer to the law and to the Constitution. They are not supposed to take into consideration any political concerns.” Discussing the dangers of special interest influence in judicial elections in a USA Todayarticle, Brennan Center for Justice counsel Adam Skaggs noted that state legislatures, voters, and court scholars across the country have been debating methods of judicial selection, and in particular, how to preserve judicial independence in light of increased special interest influence in judicial elections. Jim Bopp, an attorney for the James Madison Center for Free Speech, argued that judicial elections are the best way for voters to hold “activist judges” accountable.
3. Noting that the Pennsylvania Bar Association will hold public hearings to examine judicial selection and the financing of judicial campaigns, an article in the Pittsburgh Tribune Review suggests that the state legislature may soon consider moving from contested judicial elections to a merit selection system. Pennsylvania Superior, Commonwealth and Supreme courts judges are currently chosen in contested elections, and while switching to appointed judges would require a constitutional amendment, according to Shira Goodman, deputy director for Pennsylvanians for Modern Courts, “the mood in Pennsylvania and the focus on the judiciary show the public is very concerned.”
4. Roslyn O. Silver, the federal district judge who succeeded Judge Roll upon his death, has declared a judicial emergency in Arizona. According to the Arizona Republic, federal felony caseloads have soared to a record high in the state, even as judicial appointments have slowed due to partisan politics in Washington. Chief Judge Alex Kozinski of the Ninth U.S. Circuit Court of Appeals told the Wall Street Journalhe hoped Congress would take action in response to the emergency declaration and Senator Charles Schumer informed Politico that he isworking with Judiciary Committee Chairman Patrick Leahy and Senator Lamar Alexander to foster “a really strong and bipartisan effort to get many more judges approved.”
5. “I would like to believe that because of my background and my life experiences, I bring sensitivity to those who may not have been born into a life of privilege, a sensitivity to those whose life circumstances make it difficult for them to conform with all of society's expectations.” Speaking about her nontraditional upbringing and her position—if confirmed—as the first openly gay member of the Hawaii Supreme Court, state judge Sabrina Shizue McKenna also stated that she hopes her presence on the court will give “hope to people who feel that they cannot succeed” because they do not fall within traditional demographics. According to the Honolulu Star-Advertiser, Governor Neil Abercrombie called McKenna’s appointment earlier this week—his first judicial appointment since taking office— “the most important decision” in his career.
6. Compared to the tension between the executive and judicial branches on display at the 2010 state of the union, this year’s address was relatively uneventful. Leading up to the address, however, numerous outlets speculated about possible new conflicts in light of Justice Scalia’s speaking engagement at the House Tea Party Caucus and Justice Thomas’ revision of his financial disclosure filings to reflect income his wife received from the Heritage Foundation. An NPRreport concluded that “on Monday night there appeared to be more fizzle than sizzle to the charge of unseemly partisanship” by Justice Alito. Concern remains, however, that interactions between the judicial, executive, and legislative branches have become more politicized. An article in USA Todayexamined the issue and concluded that increased politicization “could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.”
7. “There is no moratorium on crime, drug addiction, alcoholism, domestic abuse, or the need for access to justice. If anything, our current economic woes have increased these problems.” So stated South Dakota Supreme Court Chief Justice David Gilbertson in his annual address to the state legislature. Chief Justices across the county similarly offered mixed messages of efficiency and progress amidst budgetary pressures in recent State of the Judiciary addresses, which are available online through The National Center for State Courts.
------------------------------------------------------------------------------------------------- Previous editions of the Brennan Center Fair Courts E-lert are available on the Brennan Center website here. If you have comments regarding the E-lert, any articles you'd like to see included, or know of anyone who would like to receive this service, contact Maria da Silva.
Yesterday, for the second time in a week, the Committee on House Administration held a hearing on the DISCLOSE Act — DISCLOSE stands for "Democracy Is Strengthened by Casting Light On Spending in Elections." The Act responds to the U.S. Supreme Court’s decision in Citizens United v. FEC, which struck down the longstanding ban on corporate expenditures in federal elections. According to President Obama, it would “establish the toughest ever disclosure requirements for election-related spending . . . so the American people can follow the money and see clearly which special interests are . . . trying to buy representation in our government." Obama argues that we need tough disclosure rules because we are “facing . . . no less than a potential corporate takeover of our elections.”
The DISCLOSE Act would bring much needed transparency to the financing of federal elections, and Congress should adopt it without delay. Increasing the information available to the public will help citizens make informed choices when they vote, and will ward off the potential for corruption that flows inexorably from hidden money.
But the DISCLOSE Act applies only to federal elections. Because undisclosed special interest spending poses the same threat to state and local races, state policy makers also need to act. One priority area should be state judicial elections, where the need for strict disclosure rules is particularly acute.
Why is disclosure in judicial elections so important? Because, as a 2004 cover story in Business Weekput it, “special interests are increasingly turning to the courts to advance goals they can’t win legislatively. . . . Increasingly, they have come to view the judiciary as something to be gamed and captured — just like Congress or the State House.” An Ohio union official said it more succinctly: “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”
With special interests spending ever-increasing dollars to capture state judiciaries, robust disclosure rules are needed to protect fair and impartial courts. Legislators in the 39 states that elect judges should pass laws that require disclosure of who’s paying for judicial campaign ads.
It’s particularly important to prevent special interests from disguising their spending by funneling money through innocuous sounding groups like “Citizens for Better Courts.” That happens all too often. In a 2004 election for a seat on West Virginia’s high court, for example, the CEO of Massey Coal Co. — the company that operates the Upper Big Branch Mine where 29 miners were killed last month — spent $3 million to replace an incumbent judge with a more sympathetic one. The CEO channeled about $2.5 million through a group called “And for the Sake of the Kids.” Voters might well have thought a group with that name was primarily concerned with, say, fighting child abuse or education — not coal. Regardless, the spending worked: the CEO’s preferred judge won the race, and promptly cast the tie-breaking vote to throw out a $50 million damages award against Massey.
State legislators should adopt measures, like those in the DISCLOSE Act, that will help voters understand when a group like “For the Sake of the Kids” is really “For the Sake of the Coal Company.” That would shed welcome sunlight on the judicial campaign trail. But state courts need not — and should not — wait for the politicians in the legislature to act. Judges themselves can pass a number of rules — now — that would increase disclosure and promote fair courts after the campaigning is over, when the victorious candidates take their seats on the bench.
In particular, state supreme courts should adopt rules that require judges and litigants to disclose campaign spending, and that disqualify judges from hearing the cases of their biggest campaign supporters. The need for such rules was the ultimate lesson of the 2004 West Virginia race. In the Massey litigation, the U.S. Supreme Court ultimately ordered the judge who cast the decisive vote for Massey off the case because the CEO’s extraordinary campaign spending on his behalf created such a high probability of bias.
To ensure that every litigant appearing in court faces a level playing field — and no judge’s supporter has a “home court advantage” — state courts should pass three disclosure rules.
First, judges should be required to disclose, on the record or in writing, any facts that might affect whether they can be fully impartial. Even if a judge thinks he or she need not step aside in a given case, requiring the judge to list all relevant facts — particularly those about campaign conduct and fundraising — will ensure that litigants and the public are fully informed about potential influences on judicial decision making.
Second, at the outset of a proceeding, parties and their lawyers should be required to file an affidavit disclosing any contributions or independent expenditures they made in favor of or against the presiding judge. Such a rule would ensure that every relevant fact is on the record before disqualification decisions are made.
Finally, when judges are asked to recuse themselves because of campaign finance issues, they should provide written explanations of their decisions. Today, all too often, judges simply deny recusal requests without giving any reasons. Requiring judges to grapple with recusal requests in writing — as the Michigan Supreme Court recently did in adopting a new recusal procedure — guarantees that the public (and litigants) understand the relevant facts; ensures transparent and reasoned decision making; and makes meaningful review of recusal decisions possible.
State legislatures should adopt broad disclosure rules to ensure that all campaign spending — including in judicial contests — takes place in the light of day. But state courts should also act, by adopting narrower, more focused disclosure rules that come into play only when the same parties who bankroll judges’ campaigns appear in their courtrooms. The rules proposed above will protect every party’s due process right to a fair trial before a neutral, impartial decision maker. In today’s world of money-soaked judicial elections, that is a must.
Illinois is home to the nation’s costliest judicial election ever: the 2004 contest between Lloyd Karmeier and Gordon Maag. The two candidates in Illinois's fifth judicial district together raised almost $9.4 million, nearly double the previous national record. It topped the money raised in 18 of 34 U.S. Senate races decided that year. Even Karmeier, the winner of the race, described the money poured into the campaign as “obscene.”
The eye-popping fundraising resulted from a parade of special interests on both sides of the “tort wars." The fifth district had been known for large damage awards against corporate interests, and the election’s winner was expected to play a crucial role on a closely divided Illinois supreme court. Trial lawyers funneled millions to Maag, while Karmeier got buckets of cash from the U.S. Chamber of Commerce. Karmeier also got a boost from a company with a very real interest in the race's outcome: State Farm Insurance Company, which happened to be appealing a damage award of more than $450 million. Karmeier got $350,000 in contributions from employees, lawyers, and others directly involved with State Farm and another $1 million from larger groups affiliated with the company. After he won the election, Karmeier cast the deciding vote that saved State Farm roughly a half-billion dollars.
The Illinois election wasn’t an anomaly. In the last decade, state judicial elections across the country have evolved from quiet, civil contests into extravagant affairs with exorbitant spending, mud-slinging, and bitter personal attacks. Special interests in particular have helped engineer many of these races, pouring money into campaign coffers and negative TV ads. For instance, in a 2006 race in Washington—the most expensive judicial election that state had ever seen—every TV spot was paid for by a special interest group. As an Ohio AFL-CIO official put it, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”
And now, the problem is likely to get a lot worse. Much has been made about how Citizens United v. Federal Election Commission (FEC), the recent Supreme Court decision that lifted the ban on corporate spending in elections, will allow special interests to dump money into presidential and congressional races as never before. But the decision was handed down, in the words of Justice John Paul Stevens, just “when concerns about the conduct of judicial elections have reached a fever pitch.” Indeed, thanks to CitizensUnited, the likely explosion of special-interest spending in this year's judicial races threatens to further erode the judiciary's independence.
This year, candidates in 18 states will face off to fill 34 supreme court seats. More than 30 other high court judges will sit for unopposed “retention” elections, in which voters will vote “yes or no” to keep them on the bench. And, because of Citizens United, many legal observers are expecting that these elections will be special-interest spending frenzies. Retired Supreme Court Justice Sandra Day O'Connor said at a conference at Georgetown University Law Center in January that “Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
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