Cost of Judicial Races Stirs Reformers

By: - August 5, 2005 12:00 am

In the wake of last year’s costliest and possibly nastiest elections ever for state Supreme Court justices, a few states are drawing up changes to curb threats to the impartiality and fairness of their legal systems.

At the state level, it isn’t grueling Senate confirmation hearings at the center of judicial battles, as is the prospect in store for U.S. Supreme Court nominee John Roberts. It’s soaring campaign spending and bare-knuckled special interest politics.

At least one state — West Virginia — is considering scrapping judicial elections altogether after state voters were bombarded by more than 4,000 TV attack ads in 2004 during the most expensive high court race in state history.

West Virginia is one of 22 states that elect their high court justices in head-to-head races.

“No one in West Virginia was pleased with the kind of campaigning we saw in last year’s Supreme Court race, no matter who their candidate was,” said Tom Tinder, executive director of the West Virginia state bar.

Two Illinois state Supreme Court candidates raised .3 million combined in 2004, spending more than candidates in 18 U.S. Senate races. Gov. Rod Blagojevich (D) now is urging the state General Assembly to pass campaign finance caps.

In Minnesota, judicial races may soon see a flood of money. A federal appeals court on Aug. 2 struck down longstanding restrictions on judicial candidates from aligning with political parties and seeking donations.

The ruling follows a U.S. Supreme Court decision that judicial candidates have a right to voice their opinions on legal and political issues.

“Clearly there’s a trend toward more money and more acrimony in judicial races, and more judges taking sides on hot-button issues,” said Indiana University law professor Charles Geyh.

The Minnesota ruling likely will garner attention from the 13 other states that hold nonpartisan elections to choose judges. And Minnesota likely will become like eight states that now have partisan balloting — Alabama, Illinois, Louisiana, Michigan, Ohio, Pennsylvania, Texas and West Virginia.

In 23 states, members of the high court are appointed by the governor with the help of a committee, and in 16 of those states justices face uncontested “retention elections” at the end of their terms.

In Maine, New Jersey, New Hampshire, Virginia and South Carolina, either the governor or the legislature appoint justices.

Advocates are urging reforms before 2006 and 2008 elections, which are expected to continue the trend of skyrocketing spending. In 2006, at least 43 state Supreme Court seats will be up for election in 17 states.

North Carolina has been touted as a model for judicial reform since it adopted the nation’s first publicly financed elections for state Supreme Court candidates. The system — funded by state taxpayers who may voluntarily earmark through a state income tax check-off — was used to elect two state Supreme Court justices in 2004.

At least three other states — Illinois, Montana and New Mexico — are considering similar systems.

Ohio agreed to require full disclosure of donors after last November’s elections. Other reforms being considered by states are publication of voter education guides, capping contributions or creating clean-campaign commissions to regulate political attack ads.

In 2004, state Supreme Court candidates nationwide raised nearly million, smashing previous spending records in nine of the 22 states that elected justices, a recent report by the judicial watchdog groups Justice at Stake Campaign , the Brennan Center for Justice and the Institute on Money in State Politics showed.

Business groups, lead by the U.S. Chamber of Commerce, doubled contributions from .4 million in 2002 to .8 million nationwide in 2004, exceeding for the first time total contributions by trial lawyers. U.S. Chamber-backed campaigns in a dozen states for 15 state Supreme Court candidates claimed a near clean sweep, Justice at Stake reported.

“It’s important for the public to understand the impact of lawsuit abuse on them as a consumer and that was the focus of our campaigns,” said Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform.

The Chamber spent more than .3 million to support the campaign of Republican-backed Judge Lloyd Karmeier, who defeated Judge Gordon Maag for an open state Supreme Court seat in Madison County, Ill. Trial lawyers and the Illinois Democratic Party spent at least .8 million in support of Maag.

Madison County has earned a reputation for large tort awards, including a .1 billion award against tobacco giant Philip Morris last year. President George W. Bush stopped there last February to urge Congress to pass tort reform.

Illinois Gov. Blagojevich has proposed campaign finance reforms for judicial candidates including banning political contributions from corporations and unions and capping donations from individuals and political parties.

Illinois and Alabama are the only two states that have no state campaign contribution limits whatsoever for judicial races.

Other states that saw record-breaking sums spent included: Alabama – .4 million; Ohio – .3 million; Pennsylvania – .3 million; and Nevada – million.

But West Virginia’s high court race had “the nastiest mudslinging in the history of modern American court campaigns,” said Justice at Stake executive director Bert Brandenburg. Special interest groups spent at least .5 million in addition to .8 million raised by the candidates.

In the election, incumbent Justice Warren McGraw was unseated by Brent Benjamin.

Of the nearly 10,000 attack ads that ran nationwide in 2004 state Supreme Court races, nearly 43 percent appeared in West Virginia, including an ad that accused McGraw of assigning a child rapist to work in a high school. That ad was produced by And For The Sake of The Kids, which received .4 million from one donor — Don Blankenship, CEO and President of Massey Energy, one of the state’s largest coal companies.

In response to the slugfest, the West Virginia State Bar, a mandatory association of all state lawyers, is investigating judicial reforms that include eliminating judicial elections and instead appointing justices through a merit selection process. The change would require a constitutional amendment and statewide vote.

Twenty-three states have adopted the merit system since Missouri created it in 1940, but the last state to do so was Utah in 1984.

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