State Judges for Sale: In the 39 States That Elect Appellate Judges, Politicization of the Bench Is Growing
Scherer, Michael, The Nation
For months District Judge Jim Parsons, a candidate for the Texas Supreme Court, has spent his free time dialing for dollars. In a state primed for political change by an influx of Latino voters, he is one of five Democratic candidates who hope well-placed campaign spending will help break the Republican Party's lock on the high court. But to compete he must first beg for thousands of dollars from the very lawyers and litigants whose fortunes are determined by judges just like him.
"I'm sitting here right now, looking at a notebook where I have all the towns broken down and the lawyers listed," Parsons said woefully on a recent afternoon devoted to fundraising. Each name demanded a phone call. And each phone call required a careful dance. Unlike a politician, Parsons cannot promise political favors in exchange for campaign lucre. He cannot predict his rulings on any future cases. But because of a June ruling by the US Supreme Court, his donors may soon expect more. In a divided decision, the court removed barriers that have historically kept Parsons and his fellow candidates from taking public positions on political disputes. Judges and lawyers have traditionally held that such public discussion of issues like abortion or the death penalty might hamper judges from deciding each case on its own merits.
The ruling is likely to exacerbate a crisis of credibility already gripping many of the thirty-nine states that elect appellate judges. In 2000, direct contributions to state Supreme Court campaigns rocketed nationally to $45.6 million, a 61 percent increase over the previous peak in 1998 and twice as much as in 1994. The flood of money is driven by a fierce battle over judicial philosophy that has pitted trial lawyers, consumer advocates and unions against corporations, their attorneys and their trade associations. In recent years, the corporate interests have gained the upper hand thanks in part to a vast investment in voter education campaigns that skirt disclosure rules, while hammering away at the idea of impartial legal review.
"I'm just overwhelmed that judicial races have been politicized to this extent," said Parsons, fully expecting that business groups would mount an independent campaign against him, one that could dwarf his lawyer-by-lawyer fundraising.
The politicization has already tainted public opinion of the judiciary. Three out of four Americans now believe that the need to raise campaign cash compromises the impartiality of elected judges, according to a poll released in August by the American Bar Association. Even lawyers and judges have begun to hold their noses. A poll sponsored in 1999 by the Texas Supreme Court found that 79 percent of the state's lawyers and 48 percent of its judges think campaign contributions have a significant impact on judicial decisions.
This fall, the stage is set for state Supreme Court races in thirty-three states that will be even more costly and possibly more harmful to the judiciary's public face. Major corporations working through the US Chamber of Commerce plan to raise as much as $25 million in undisclosed contributions, more than twice what the group raised in 2000. The companies' interests are clear: They seek to shift the makeup of state courts to judges who are much less likely to uphold costly product liability and personal injury verdicts, and in some cases environmental regulations. Jim Wootton, the head of the chamber's judicial campaign, has warned both supporters and opponents to expect an unprecedented election season. "There will be a significant expansion of our level of activity," he told a group of supporters last year.
This will likely mean costly and bitter elections in states like Texas, Ohio, Michigan, Florida, Louisiana, Illinois, Mississippi, Alabama and Idaho, where the voters' decisions could alter the courts' ideological makeup. Other business groups plan to enter the maw as well, including the Business Roundtable, the National Federation of Independent Business, the Judicial Evaluation Institute and Citizens for a Sound Economy, a nonprofit funded largely by David Koch, co-owner of the energy giant Koch Industries. …