Verdicts for Sale? Too Many Judicial Races Are Decided by Big Money from Special Interests
D'Aprile, Shane, Politics Magazine
Corporate greed, dubious judicial ethics and political intrigue--if it sounds like the plot of a new John Grisham novel, that's because it is. But the bestselling author says he looked no further than West Virginia to inspire his latest offering, The Appeal.
Grisham's fictional version is set in Mississippi, where a major chemical company has just been hit with a $41 million judgment. Carl Trudeau, the CEO of the New York-based company, decides he needs to get a favorable justice onto the state Supreme Court to ensure his company wins the appeal. Barry Rinehart is the shady politico who's helping him do it. The two bet that Carl can "buy a Supreme Court Justice" for $8 million. Not a paltry sum, but as Carl concludes, "it's cheaper than a verdict."
Depending on who you talk to, the real story isn't as black and white, nor is it easy to tell if the players involved are quite as Machiavellian as those in Grisham's novel. But the book is loosely based on the antics surrounding a 2004 West Virginia race for state Supreme Court, where challenger Brent Benjamin unseated incumbent Justice Warren McGraw.
That race, and the controversy that ensued once Benjamin took his seat on the court, is one reason that many are taking a fresh look at the nature of modern judicial contests. Big money and sometimes questionable candidates abound from Alabama to Washington State.
"These elections are easily bought," says David Browne, a Democratic media consultant who has worked on high court races in several states, including West Virginia. Browne founded the Democratic Judicial Campaign Committee, he says, in response to the increased involvement of the U.S. Chamber of Commerce in judicial races during the mid-1990's. "At first the races weren't that expensive, but now they are off the charts," Browne says. "In Ohio, it's the chemical industry that pours in the money. In Alabama, it's largely the energy industry."
Increasingly dominated by special interest money, the modern landscape of these campaigns is riddled with fiercely negative and overtly political attacks. Most contested judicial elections follow a similar formula. Trial lawyers line up on one side and business interests line up on the other. The average voter tends to know little about the candidates themselves, and less still about the issues involved. Name recognition is just about zero for most candidates, and getting attention is most of the battle.
The one judicial contest already waged this past spring featured all the hallmarks of the modern judicial campaign. In that nasty April race for Wisconsin Supreme Court, millions were spent on attack ads by third-party business and education groups. According to one estimate, both high court candidates were outspent on the airwaves 10 to 1 by outside interests. And because of the state's weak disclosure laws, those groups were able to keep their contributors largely private.
A recent report from the Justice at Stake Campaign, a coalition of reform groups that mostly advocates for publicly funded judicial contests, assesses the current state of affairs this way: "Attorneys, business interests, ideological groups and political partisans have locked themselves into an escalating arms race. Judges and justices routinely raise millions of dollars from contributors whose cases they decide. Above all, special interests are working to convert judicial elections into a tool of political intimidation rather than public accountability."
Along with skyrocketing money and attention from special interests, hundreds of thousands of dollars in TV ad spending has become the norm. And in the wake of a 2002 U.S. Supreme Court decision--one that several states have interpreted very differently--some judicial candidates can now openly express their positions on hot-button political issues, from abortion to the war in Iraq. …