Buying the Judiciary. (Editorial)

Article excerpt


Frustrated by state courts that insisted on respecting jury decisions and protecting victims' right to sue corporations that injure them, Big Business has figured out that it can simply buy replacement judges.

Most of the U.S. states -- 39 in total -- elect judges, either through direct, contested elections, or through "retention" elections, in which previously nominated judges appear before the voters in a thumbs-up-or-thumbs-down election.

These electoral races have traditionally been sleepy affairs, in which judges cite endorsements from various law associations and tout their professionalism.

In recent decades, there have been spikes of interest in some of these races, with corporations throwing money at judicial contests in California and Texas, among other states, to defeat pro-consumer judges and replace them with corporate-friendly arbiters.

But there has not been a nationwide drive to elect a corporate judiciary. Until now.

In 2000, the Chamber of Commerce and a host of business interests decided that they could buy state supreme court elections. That year, state supreme court candidates raised more than $45 million, according to the Brennan Center for Justice at New York University Law School, a 68 percent increase from 1998 and more than double the amount of 1994.

And that $45 million figure significantly understates the amount spent on supreme court races, because it does not include "issue advertisements" -- "independent expenditures" that do not say "elect" or "defeat" and thus are exempt from normal campaign finance rules.

Of course, not all of the money that poured into judicial races came from corporations and their allied lawyers. Trial lawyers and labor unions made major contributions to sympathetic candidates. But these forces could not match the expenditures from the corporate side.

In one state, Ohio, the Chamber's hyper-aggressive television advertisements and campaign backfired. One ad, showing Lady Justice peeking under a blindfold to look at campaign contributions from trial lawyers and unions, asked: Alice Resnick: "Is Justice for Sale?" Seeing through the hypocrisy of the ad from the Chamber -- which was infusing much more money into the judicial race than its adversaries -- Ohioans re-elected Resnick.

By 2002, the corporations had figured out how to be more strategic. First, they relied more on local business money, or at least downplayed the role of out-of-state contributions. Second, they enlisted new allies in their efforts, notably doctors in favor of limiting patient rights in medical malpractice cases. Third, they invested even more money in judicial races, and widened the number of states where they campaigned.

There was television advertising for judicial races in nine states in 2002, as compared to five states in 2000. …