The Situation of Judging – Part II

In late July, we posted about former Supreme Court Justice Sandra Day O’Connor’s remarks at the National Governors Association Conference at which she called on the state executives to help do something to protect and reinforce judicial independence. That post mentioned other writings on the situations of judges and judging including a 2006 report (pdf available here) entitled the “New Politics for Judicial Elections Report for 2006,” by the Justice at Stake Campaign. The report is excellent and, we thought, worth summarizing.

As it happens Nina Totenberg has recently done just that for NPR’s Morning Edition. So, below we have excerpted the transcript of her report, supplemented with graphs and charts from the report itself (plus an interesting video described below).

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A new report shows a dramatic increase in special interest money being spent on judicial elections.

The report, compiled by the nonpartisan group Justice at Stake, shows that business interests spend twice as much money on state high-court elections as all other groups combined, including lawyers.

At the same time, a poll of business leaders shows many feel uneasy about the trend.

Documenting the increasing influence of money in judicial elections, the report shows fundraising by state supreme court candidates rose in 2006, with the median being close to $250,000 per candidate. The high-water mark came in Alabama, where the total price tag for the race for chief justice was $8.2 million.

TV ads ran in 10 of the 11 states where state supreme court judges were up for election, compared to just four states out of 18 six years earlier. Average television spending hit a new record at $1.6 million per state. And business interests outspent everyone else combined — by a 2-to-1 margin.

 

“What we are seeing now is the beginning of a very serious arms race,” said Charles Kolb, president of the Committee for Economic Development, a business group that is part of Justice at Stake.

Kolb contends that the arms race could end up with the mutually assured destruction of our judicial system.

His group sponsored a Zogby poll of business leaders that shows concern running so high that 70 percent of those polled favored alternatives to judicial elections.

The big players from the business community in judicial elections, however, are the Chamber of Commerce and the National Association of Manufacturers. They began focusing on state judicial elections because they thought they were being outgunned by the plaintiffs’ bar — lawyers seeking big damage awards for clients who claimed injury.

It used to be that they were, but not any more. Business groups contributed twice as much to supreme court candidates as lawyers and unions combined in 2006. And 85 percent of non-candidate TV advertising was sponsored by business groups.

Take Georgia, for instance. The lone race for the state supreme court there cost $38,000 in 2000. But in 2006 the National Association of Manufacturers targeted Justice Carol Hunstein, through its affiliate group, the American Justice Partnership, with $1.3 million in contributions.

“Justice Hunstein was very, very unpredictable,” said Dan Pero, president of the American Justice Partnership, offering an explanation for why the group targeted her. There was concern, he said, that Hunstein was a judge the partnership “could rely on” to correctly interpret the law.

But tort reform was not prominently featured in the anti-Hunstein TV ads, many of which attempted to make her look soft on crime.

Pero said the ads were focused on issues to which the general public could relate.

Ironically, Hunstein’s record was considerably more conservative than her other colleagues up for re-election. A statistical analysis of Georgia supreme court criminal case rulings done by the Fulton County Daily Report concluded that in cases decided by a divided vote, Hunstein sided with the prosecution 39 percent more often than did the court as a whole.

Despite the fact that business groups poured money into the campaign to defeat her, Hunstein raised over $1 million herself and won.

Some of her supporters say the ad campaign was meant to send a message to others on the court that they too could face a business-financed challenge. [Justice Hunstein describes her election experience in the 9-minute video below.]

Former Michigan Gov. John Engler, head of the National Association of Manufacturers, conceded as much.

But the trend bothers Ohio Chief Justice Thomas J. Moyer, a Republican, who is the nation’s longest serving current chief justice.

“Human nature is that we help people if they help us,” Moyer said. “And that’s the problem with this system.”

Judges like to say that money doesn’t matter when they are making decisions, but trying to ignore big money in judicial elections, observed one noted judge, is like trying to ignore the crocodile in your bathtub.

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To view the entire report 2006 report, the “New Politics for Judicial Elections Report for 2006,” click here. To view our earlier post on the situation of judging, containing other related links, click here.