CAMPAIGN 2010 How partisan politics has changed the face of judicial races – and made them costlier

Susan Gluss

Sunday, October 17, 2010

Judicial elections used to be sleepers: rarely advertised and seldom contested. But in the last decade, across the nation many have become multimillion-dollar duels. High-court candidates raised about $207 million for campaign war chests between 2000 and 2009, more than double the money raised in the previous 10 years.

The perils of these expensive, politicized judicial contests are underscored by a new report by the Brennan Center for Justice. The report shows the extent that politics and special interests are infecting judicial races – and the resulting threat to judicial independence and impartiality.

Report co-author and attorney Adam Skaggs cites Michigan as this year’s “poster child for the costly and nasty campaigns” raging on the national scene. Contested races for two of the state’s Supreme Court seats could top $10 million, the most expensive judicial elections in its history.

Michigan’s election battles are fueled with negative ads financed by political parties and special-interest groups. In one contested race, Democratic Justice Alton Davis is running to retain his seat on the state Supreme Court. Davis was appointed just two months ago by Michigan’s governor. Attack ads call the appointment a “sleazy deal”: “Can we trust a judge like Alton Davis who cuts backroom deals to benefit himself and his political party?” the ad asks. Not to be outdone, Democrats are running negative ads against an incumbent Republican, Justice Robert Young.

Mud-slinging attack ads aren’t limited to Michigan. Illinois and Iowa are both home to expensive retention fights. Normally low-key and low-cost, these single-candidate elections are now seen as partisan tools to get rid of a state Supreme Court justice.

About 90 percent of all law is made in the states; so the stakes are high for special-interest groups – and the justices who anger them.

In Iowa, three justices are in hot water for striking down the state’s ban on same-sex marriage. Social conservatives and right-wing groups are leading an offensive to oust them. Out-of-state organizations have bankrolled TV ads, and at least one church, Cornerstone World Outreach, has urged pastors across the state to join the ouster efforts.

In Illinois, more than $20 million was spent on state Supreme Court elections in the past decade. And the money train keeps on chugging. This year, business groups are shelling out cash to defeat incumbent Justice Thomas Kilbride. His supporters call him a man of the highest integrity, a good lawyer and a superb justice. But Kilbride voted to strike down a law that capped awards for medical malpractice claims. That vote infuriated doctors and insurance companies that vowed to unseat him.

Kilbride is fighting back. His ads say he “makes sure the law works for everyone, not just the wealthy and well connected.”

This political pressure on our courts troubles many legal experts, including former U.S. Supreme Court Justice Sandra Day O’Connor. A staunch critic of judicial elections, O’Connor wrote in a 2008 national magazine article that “politically motivated interest groups are attempting to interfere with justice. … When so much money goes into influencing the outcome of a judicial election, it is hard to have faith that we are selecting judges who are fair and impartial.”

A West Virginia case proves this point to the extreme. A state Supreme Court judge refused to disqualify himself from the appeal of a $50 million jury verdict against a coal company, even though its CEO had just spent $3 million on his judicial campaign. Once on the court, the newly elected judge cast the deciding vote overturning the verdict. The U.S. Supreme Court has since ruled that judges must pull out of cases involving their large donors. But not before critics charged that justice is for sale.

U.S. Court of Appeals Judge Richard Posner, based in Chicago, opposes judicial elections altogether. He says they limit the candidate pool, because few qualified for the job relish a brutal political race. “Being a politician is its own profession,” Posner says. “A good judge is not necessarily a good campaigner.”

It also leads to a conflict of interest: Big contributors to a judge’s election no doubt expect favored treatment; at the very least, the perception of favoritism lingers. Finally, Posner says, “Judges will fear that their decisions will be warped,” because an unpopular ruling could mean defeat at the polls.

Sound familiar? In 1986, California Supreme Court Justices Rose Bird, Joseph Grodin and Cruz Reynoso were ousted for their votes against the death penalty; they were targets of an $11 million campaign attacking them as soft on crime.

A dozen years later, right-to-life groups went after California Supreme Court Justices Ronald George and Ming Chin for striking down a law requiring parental consent for minors’ abortions. The justices retained their seats, but battle scars remain. Chief Justice George, speaking at a 2008 Berkeley Law conference, said that many view the courts as “another political player … to advance a preferred social, economic, or political agenda.” George embodies judicial independence on the bench. Appointed to the high court by Republican Gov. Pete Wilson, George gained national notoriety by writing the opinion that legalized same-sex marriage – until it was overturned by Proposition 8.

State Appeal Court Justice J. Anthony Kline worries that politicized judicial elections are happening more often in California – a trend he calls “ominous.” Even trial judges are not immune. If challenged in a partisan race, they, too, have to solicit big-money contributions.

Case in point: the campaign against Superior Court Judge Richard Ulmer, an independent, by research attorney and author Michael Nava. San Francisco’s Democratic County Central Committee backs Nava, despite Ulmer’s outstanding record and pro bono work on behalf of the poor and oppressed. Kline wrote in a legal newspaper recently that the election is transforming “a nonpartisan position into a political plum without regard to the quality and independence of the judges sacrificed in the process.” Partisan races “chill judicial independence,” says Kline, as politicians in black robes become beholden to special interests.

Judges must stand up for unpopular ideas enshrined in our Constitution. Whether it’s protection of unpopular racial, religious and political minorities or criminal defendants, judges shield us from bigotry and discrimination.

The United States is the only country in the world that elects some of its judges – 39 states in all, including California. If we are to avoid the pitfalls of costly judicial elections, reforms are essential. At stake are hard-earned civil liberties, fair and independent courts, and judges who uphold the rule of law.

What can be done

No single solution exists to solve the problem of partisan judicial elections. Although some critics want to eradicate elections entirely, some analysts believe that judicial independence can be preserved with modest reforms. They include:

— Public financing so judges don’t have to dial for dollars

— Stronger disclosure rules to let voters know who’s financing the political ads

— Strict disqualification regulations to avoid undue judicial influence by big donors

— Voter information guides to better educate the voting public about judicial races

— Merit selection* of judges to avoid contested elections.

*Nonpartisan commissions screen candidates and submit recommendations to the governor, who makes the appointment. Judges then face voters in periodic retention elections.

This article appeared on page E – 6 of the San Francisco Chronicle