The New POLITICS OF JUDICIAL ELECTIONS

By Sample, James J.; Hall, Charles et al. | Judicature, September/October 2010 | Go to article overview

The New POLITICS OF JUDICIAL ELECTIONS


Sample, James J., Hall, Charles, Casey, Linda, Judicature


State judicial elections have been transformed during the past decade. The story of America's 2000-2009 high court contests - tens of millions of dollars raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail - has become the new normal.

For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale. While the public supports reforms, decision makers have only belatedly begun to enact them, and many of those new laws are embattled in a growing litigation war that threatens all campaign finance regulation.

These are the conclusions of "The New Politics of Judicial Elections 20002009: Decade of Change." The report, co-authored by the Justice at Stake Campaign, the Brennan Center for Justice, the National Institute on Money in State Politics, and Holstra University Law Professor James Sample, is the first comprehensive national study of a decade in which state judicial elections underwent radical change.

From 2000 to 2009, fundraising by state high-court candidates soared to $206.9 million, more than double the $83.3 million raised in the previous decade. Special-interest groups spent an estimated $39 million more on independent TV ads, meaning that all Forms of state high-court spending in 2000-2009 totaled nearly $250 million, and very likely more.

As noted in a foreword by Justice Sandra Day O'Connor, who has crusaded tirelessly to reduce special interest influence on courts since her retirement from the U.S. Supreme Court, this explosion in spending has convinced many Americans that campaign bankrollers get favored treatment from judges they help elect. "This crisis of confidence in the impartiality of the judiciary is real and growing," Justice O'Connor wrote. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

The "New Politics 2000-2009" report is die fifth in a series exanrining spending, nasty TV ads, and other trends in the 38 states that hold competitive or retention elections for state supreme courts. But as noted, the newest report is the first to look at an entire decade, and not just the previous two-year election cycle. The report's authors said: "By tallying the numbers and 'connecting the dots' among key players over the last five election cycles, the report offers a broad portrait of a grave and growing challenge to the impartiality of our nation's courts."

The trends identified in the report include:

* The explosion in judicial campaign spending, much of it poured in by "super spender" organizations seeking to sway the courts;

* The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state supreme court seat;

* The emergence of secretive state and national campaigns to tilt state supreme court elections;

* Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;

* Growing public concern about the threat to fair and impartial justice - and support for meaningful reforms.

The money explosion

In just a decade, in high court contests across America, cash has become king. Would-be justices must raise millions from individuals and groups with business before the courts. Millions more are spent by political parties and special-interest groups, much of it undisclosed. The money explosion is not just a threat to impartial courts. It has left a sour taste for a majority of Americans, who believe that campaign cash is tilting the scales of justice.

Although warning signs were gathering in the 1990s, the new politics of judicial elections burst on die scene with the 1999-2000 election cycle, when supreme court candidates raised $45. …

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