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Supreme Court Issues Landmark Ruling on Judicial Recusal Tony Mauro In a landmark ruling that could affect state judicial elections nationwide, the U.S. Supreme Court on Monday said that due process can require a state judge to recuse when a party in a case before him or her has had a "significant or disproportionate" influence on placing the judge on the court through an outsized campaign donation. The 5-4 decision in Caperton v. Massey Coal Co. introduces for the first time a constitutional standard into the debate over the influence of big money on judicial elections, which supporters said was a victory for the rule of law. Some reformers even expressed hope on Monday that the opinion would spur states to rethink judicial elections altogether and move to merit selection. But critics said the ruling sets a vague standard that will only trigger a flood of meritless recusal motions and sully the reputation of the judiciary, not enhance it. Justice Anthony Kennedy, writing for the majority, said, "Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances 'would offer a possible temptation to the average...judge to...lead him not to hold the balance, nice, clear and true.'" The "nice, clear and true" formulation comes from one of the few Court precedents on recusal, the 1927 case Tumey v. Ohio, which said judges must recuse if they have a direct financial interest in the outcome of a case. Kennedy emphasized his ruling affects only extreme cases like the West Virginia case before him . In Caperton , Don Blankenship, chief executive officer of the Massey coal company, spent $3 million to help elect Brent Benjamin to the West Virginia Supreme Court of Appeals, while the appeal of a $50 million punitive damages award his company lost was on its way to that court. Benjamin was elected, refused repeated calls for him to recuse, and he cast the deciding vote in favor of his benefactor's company. Author John Grisham has said he had the West Virginia case in mind when he wrote the 2008 thriller The Appeal . All those factors — including the large size of the donation and the pendency of Blankenship's company's appeal while the election campaign was underway — made it "an extraordinary situation where the Constitution requires recusal," Kennedy wrote. "The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case." Kennedy also stressed that campaign contributions do not inherently create a probability of bias. As a result, Kennedy said that even in the wake of the Caperton decision's new constitutional line, "Most disputes over disqualification will be resolved without resort to the Constitution," instead implicating only state laws and judicial codes of conduct. But dissenters led by Chief Justice John Roberts Jr. were not so sure. They said the majority's standard could lead to the filing of " Caperton motions" alleging judicial bias, "however groundless those charges may be." Roberts added, "The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Joined by justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr., Roberts went on to list 40 questions the majority opinion does not answer about how the new standard will be applied. "How much money is too much money?" Roberts wrote. "How long does the probability of bias last?" He also wondered whether large contributions from an affected trade association or a racial or ethnic group, rather than an actual party in a case, would trigger the Caperton rule. And if a large contribution came from a lawyer, rather than a party, Roberts wrote, "must the judge recuse in every case involving that attorney?" James Sample of the Brennan Center for Justice at New York University School of Law, who celebrated Monday's ruling as "a narrow decision that is a huge victory for the rule of law," nonetheless said that Roberts' questions "are well-taken and will be addressed by state court judges" without resort to the Constitution except in very rare cases. "This was the ultimate scenario." American Bar Association president H. Thomas Wells Jr. applauded the ruling and announced that the association will develop "a series of guidelines for courts to assess whether contributions to judges' campaigns implicate the due process rights of parties appearing before them. This evaluative process is one way to restore the public confidence in our courts so critical to preserving our government of laws." Former Colorado Supreme Court Justice Rebecca Kourlis of the University of Denver's Institute for the Advancement of the American Legal System said she hopes the ruling will "create some momentum" for states to consider scrapping judicial elections and moving toward merit selection. "Election states may begin to think, 'we can do better than this.' " Theodore Olson of Gibson, Dunn & Crutcher, who argued in the case on behalf of the Harman Mining Corp. that won the damages award from Massey, could not be reached for comment. But David Fawcett of Buchanan Ingersoll & Rooney, who also represented Harman, said the decision was a welcome victory. "Everyone has a right to a fair trial and an unbiased judge under the Constitution. The idea that a corporate CEO could spend millions to influence the result in a case was a broadside attack on our system of justice. " But Justice Antonin Scalia, writing a separate dissent, said not every wrong rises to a constitutional level. "The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution." Scalia said the Court was doing more harm than good by expanding "our constitutional mandate in a manner ungoverned by any discernible rule." Retiring Justice David Souter was part of the narrow majority, and the liberal Constitutional Accountability Center quoted from a 1996 speech in which Sonia Sotomayor, nominated to replace Souter, appeared to be in tune with the majority by criticizing judicial campaign contributions. "We would never condone private gifts to judges about to decide a case implicating the gift-givers' interests," Sotomayor said. But "our system of election financing permits extensive private, including corporate, financing of candidates' campaigns, raising again and again the question what the difference is between contributions and bribes." ABA President Calls Expensive Judicial Races Obscene By Phillip Rawls MONTGOMERY, Ala. - The president of the American Bar Association says enormously expensive judicial races, like this year's $5 million slugfest for a Supreme Court seat in his home state of Alabama, threaten the public's confidence in the judicial system. "More was spent on that race than was spent on providing access to the courts for people of limited means. That was obscene," said ABA President Thomas Wells Jr. of Birmingham. At his request, the bar association is urging judicial, legislative and executive branch officials from each state to gather in Charlotte, N.C., in May for a summit. The goal, Wells said, is to "collaborate on plans for promoting fair and impartial courts." Wells, who built his reputation defending businesses in complex litigation, doesn't limit his concerns to partisan elections like those in Alabama and six other states. He said nonpartisan elections can also get nasty and expensive. And there have been moves in some states to term limit judges and take away their judicial immunity for the decisions they issue. Going into the 1994 election, Democrats held every seat on the Alabama Supreme Court. In the years since, Republicans have dominated elections for the court, with only two Democrats winning. One has since retired. In Tuesday's election, the Republican Party won the only court seat on the ballot, keeping the court's lineup 8-1. The candidates and outside groups spent more than $5 million on the race, which may end up the most expensive court race in the U.S. this year. At the start of the campaign, both candidates signed a pledge to run positive campaigns that would not damage the image of judges. By the end, they were accusing each other of being untruthful and having dubious qualifications, despite long records of service as judges. "Quite frankly, I was deeply disappointed in both candidates," Wells said. The race lined up just like every Supreme Court contest since 1994. The winning Republican, Greg Shaw, drew strong support from the business community in Alabama and a business group in Washington. The losing Democrat, Deborah Bell Paseur, was backed by many plaintiff lawyers. Alabama Republican Party Chairman Mike Hubbard said GOP candidates began to have success in 1994 because the state's all-Democratic court got a national reputation for upholding huge lawsuit verdicts. "The people of Alabama are conservative and want a conservative court, Hubbard said. "People remember what Alabama was like when it was 'tort hell' and had a bad reputation around the nation." Joe Turnham, chairman of the Alabama Democratic Party, said the party has recruited quality candidates. But they usually lose very close races, and he's unsure how to change that. "It's my one great thing I haven't been able to figure out as party chairman," he said. Turnham had hoped voters would be riled by a decision last November that broke along party lines. The court's eight Republicans threw out most of the $3.6 billion judgment the state government won against Exxon Mobil in a dispute over natural gas royalties. The court's lone Democrat dissented. The case never developed into a big issue for Democrats. Tom Dart, chairman of the Alabama Civil Justice Reform Committee, said lawsuit issues are not at the forefront like they once were, but "it's still a powerful message" for Republicans. Dart's group is a coalition of more than 100 businesses and business organizations, including the Business Council of Alabama and Alabama Retail Association. They are the biggest contributors to Republican Supreme Court candidates. Two groups that track spending in judicial races, the Brennan Center for Justice and the Justice at Stake Campaign, said Alabama is on track to possibly have the nation's most expensive judicial race this year, with more than $5 million spent by the two candidates and outside groups. That is a huge jump from the $1.6 million spent by both candidates in Republican Perry Hooper's defeat of Democratic incumbent Sonny Hornsby in 1994. From that campaign through the 2006 elections, Alabama led the nation in Supreme Court campaign spending, with $54 million raised by candidates. Texas was second at $30 million. Those figures have raised questions about the impact of money on justice. The Institute for Money in State Politics issued a study in 2003 that found that $18.4 million, or 9 percent of the money given to Alabama Supreme Court candidates between 1994 and 1998, came from contributors who later had cases before the court--either as parties or lawyers. Wells said the public's confidence in the fairness and impartiality of courts is affected by contributions from participants and by huge spending like this year's race. Public financing or judicial appointments are some alternatives that have been discussed, but measures to change from partisan votes have gotten little traction in the Legislature, particularly among Republicans who view such changes as a way to undermine the GOP's current hold on the courts. Too Generous Editorial Conflict-of-interest disputes often turn on arcane points of law, but that is hardly the case with the controversy over the West Virginia Supreme Court and Massey Energy. Massey’s chief executive spent an extraordinary $3 million to help elect a state justice who then voted to throw out a major damage award against the company. The West Virginia Supreme Court first tossed out the $50 million verdict against Massey Energy in 2007. But it decided to rehear the case after photos surfaced of a different justice — Chief Justice Elliott Maynard — vacationing in Monte Carlo with Massey’s chief executive, Don Blankenship, while the case was pending. The chief justice disqualified himself from the rehearing, as did another justice, who had publicly criticized Mr. Blankenship and his firm. The court once again ruled in Massey’s favor. As before, the deciding vote was cast by Justice Brent Benjamin. He refused to recuse himself despite the $3 million that Mr. Blankenship spent to get him elected. Judicial neutrality and the appearance of neutrality are basic elements of due process. Not every contribution to a judicial campaign triggers due process concerns significant enough to require recusal, but Mr. Blankenship’s outsized campaign expenditures surely did. Across the country, state courts are drowning in a sea of special-interest campaign money. The American Bar Association has good standards for judicial recusal, which nearly every state court system and the federal judiciary have adopted. Unfortunately, compliance is spotty. Situations like the Massey Energy case create an unmistakable impression that justice is for sale. The United States Supreme Court should add the Massey case to its docket for the upcoming term and throw out the court’s tainted ruling. Special Interest Lobbies Pour Cash Into Judicial Races By: Tim Jones Sixty-six percent of Americans can name at least one judge on the popular TV show "American Idol," while only 15 percent can identify John Roberts as chief justice of the Supreme Court. That's according to a poll showing Americans are largely clueless when it comes to knowledge of the nation's judicial system. Yet special-interest lobbies - from business groups to labor unions and trial lawyers - know very well who is running for state Supreme Court seats around the nation because they are pouring unprecedented millions of dollars into these formerly obscure races, with the intent of electing justices who will advance or protect their financial interests. The recent $6 million campaign for a single seat on the Wisconsin Supreme Court, following a contest a year earlier in which a similar amount was spent, has added to evidence that state courts may be compromised, if not in fact then in appearance, by campaign cash from contributors who have matters pending before those courts, legal experts warn. In many ways the escalation of spending for court seats mirrors the current best-selling potboiler by John Grisham, "The Appeal," in which fictional corporate interests bankroll a candidate for a state Supreme Court seat in hopes of reversing a large damage verdict against the company. "It's an arms race," said Bert Brandenburg, executive director of the Justice at Stake Campaign, a Washington-based, non-profit judicial watchdog. "The spending is almost entirely fueled by trial attorneys and business attorneys slugging it out, just as they would in a courtroom." Courts are often the final arbiters in big product liability disputes and tax cases, and the races for seats on the bench have become magnets for campaign cash. In Wisconsin, Judge Michael Gableman and Justice Louis Butler spent a combined $1.2 million for the April 1 election, which Gableman narrowly won. But outside interest groups spent about $4.8 million to influence the race's outcome, according to the Wisconsin Democracy Campaign. Butler's foes saw an opportunity to tilt the ideological makeup of the court. "I think many interest groups have grown frustrated with the partisan gridlock with legislatures ... and they've realized they can often accomplish through the courts what they couldn't get through the legislature," said Mike McCabe, executive director of the Wisconsin Democracy Campaign. National Spending Up Nationally, spending for Supreme Court races was $165 million during the 1999-2007 election cycles, up from $62 million over the previous decade, according to the Justice at Stake Campaign. There has long been discomfort in legal circles about judges seeking election to the bench, given the potential appearance of judges being beholden to campaign contributors with matters before the court. As the number of multimillion-dollar court campaigns grow, those fears are taking shape. Arguments are pending on a petition to the U.S. Supreme Court that stems from the refusal of a West Virginia Supreme Court of Appeals justice to disqualify himself in a case involving a contributor who supported his election campaign with more than $3 million. The justice repeatedly ruled in favor of the contributor in a $50 million jury verdict against the contributor's company. Theodore Olson, a former U.S. solicitor general who filed the appeal with the Supreme Court, said a "line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge." One of the justices on the West Virginia court said the relationship between the contributor, a coal company executive, and Justice Brent Benjamin has "created a cancer in the affairs of this court. ... I shudder to think of the cynicism and disgust that lawyers, judges and citizens of this wonderful state will feel about our justice system," said Justice Larry Starcher. "I believe John Grisham got it right when he said he simply had to read The Charleston Gazette to get an idea for his next novel," Starcher wrote in an opinion. The behavior of courts that consistently issue narrowly divided opinions can be significantly influenced by a change of one or two seats. That dynamic was at work in Illinois in 2004 when $9.3 million was spent in the Supreme Court contest between then-Circuit Judge Lloyd Karmeier and then-Appellate Judge Gordon Maag. Karmeier won the most expensive court race in recent U.S. history with the heavy financial assistance of business and insurance interests hoping to obtain a reversal of a $456 million damage verdict against State Farm Insurance. After taking his seat on the bench, Karmeier declined to recuse himself from considering the case and later voted with the court majority to reverse the damage award. Karmeier said he was not influenced by the more than $2.3 million his campaign received from business interests and those directly affiliated with State Farm. Contributions, Verdicts Independent studies of state Supreme Court decisions in Ohio and Louisiana suggest a link between campaign contributions and court verdicts. While judges have denied any quid pro quo, at the same time they decry the increasing amounts of interest group campaign money that is used to mount expensive races. That is why the West Virginia case is being watched closely. James Sample, a lawyer who co-authored a Brennan Center for Justice report on setting recusal standards for judges, said the campaign dollar amounts have gotten too large to ignore. Spending will only increase, Sample said, increasing the need for clear guidelines. "This could be a tipping point," Sample said. "There has to be a line drawn somewhere." Prominent
Los Angeles Attorney By Scott Glover Attorney Pierce O'Donnell
was indicted by a federal grand jury in Los Angeles on Thursday on
charges of funneling $26,000 in contributions to the campaign of a
candidate in the 2004 presidential election through employees of his
law firm and other people, according to the indictment.
Judicial Races Now Rife With Politics Law
Firm's Discount on Fees for By Mary Alice Robbins Travis County prosecutors
are investigating whether Texas Supreme Court Justice Nathan Hecht
received an illegal gift when Jackson Walker discounted its legal
fees for representing him in his 2006 fight with the State
Commission on Judicial Conduct. Another
Firms Contribution to By Mary Alice Robbins A plaintiff in a
wrongful-death suit is seeking to recuse Texas Supreme Court Justice
Nathan Hecht from considering an emergency defense motion in a case,
because one of the firms representing the defendant contributed
$10,000 to help Hecht pay legal fees. BigLaw Ponies Up Big Bucks to Pay Judge's Legal Bills By Miriam Rozen A number of large Texas firms — Akin Gump Strauss Hauer & Feld, Locke Liddell & Sapp, Baker Botts, Vinson & Elkins, Haynes and Boone, Fulbright & Jaworski, Thompson & Knight, and Andrews Kurth — appear on the roster of contributors who gave a total of $446,550 to Texas Supreme Court Justice Nathan Hecht's candidate officeholder account between Jan. 1 and June 30, according to a report Hecht filed with the Texas Ethics Commission (TEC) on July 15. In a Feb. 3 letter sent to firms and other contributors, Hecht wrote that he needed contributions, because he had run up a legal bill of about $400,000 in his successful challenge of the State Commission on Judicial Conduct's public admonition of him. The commission admonished Hecht in May 2006 for speaking out in support of the ultimately unsuccessful nomination of White House counsel Harriet Miers for the U.S. Supreme Court. Miers is now a member in Locke Liddell. Hecht appealed, and in October 2006, a Special Court of Review appointed by state Supreme Court Chief Justice Wallace Jefferson reversed the commission in a 2-1 decision. In the Feb. 3 letter, Hecht noted his costs, which included $340,000 in attorneys' fees and litigation costs that he owed Jackson Walker for representing him in In Re: Honorable Nathan Hecht. He asked for contributions to help defray those expenses. The report Hecht filed with the TEC this week shows V&E and Locke Liddell each contributed $25,000; Akin Gump, Baker Botts, Haynes and Boone, and Thompson & Knight each contributed $15,000; and Fulbright and Andrews Kurth each gave $10,000. On Hecht's report the date listed next to each of those firms' contributions is March 7. According to his July 14, 2006, TEC filing for the period Jan. 1, 2006, to June 30, 2006 — Hecht was up for re-election in November 2006 — Hecht reported contributions of $31,000. In a July 17 report, Texas Watch, an Austin-based consumer advocacy group, criticizes Hecht for accepting the donations and then ruling on cases in which lawyers from those same firms represented parties. Alex Winslow, executive director of Texas Watch, says that between March 1 and June 1, the high court rendered opinions in eight cases that involved parties represented by lawyers whose firms had contributed to Hecht's officeholder account. In seven of those cases, Winslow notes, Hecht ruled for the parties represented by firms that made contributions. Winslow believes the TEC should have separate categories on its reports for contributions to political campaigns versus legal funds. The agency does not do so. Hecht did not return a telephone call seeking comment before presstime. Legally Blind By Lily Henning One possibility is a blind
trust, a system of shielding names of donors to judicial candidates.
While some form of this system exists in at least a half dozen
states that hold judicial elections, none have gone all the way
toward what Yale Law School professors Ian Ayres and Bruce Ackerman
have dubbed the "secret donation booth." Talking Points - Judges for Sale
By Dorothy Samuels Several years ago, it started happening — first in just a few states, then spreading to a lot more. The unwholesome result is the dawn of a new era of raucous million dollar-plus campaigns for key state judgeships that is forcing more and more would-be jurists to bond with special interest backers, and invest in cheesy 15- and 30-second TV spots, if they want to get on the bench, and stay there. As spending by special interests in state judicial elections soars into the stratosphere, something very precious to Americans is being grievously compromised. And in certain pockets of the country, it seems well on the way to being lost altogether. That precious something is the integrity and impartiality of the nation's courts. Justice, the saying goes, is blind — symbolized in courthouses across the country by statues of Lady Justice, blindfolded so she can rule without fear or favor. But increasingly, there is one thing Justice in America can see quite clearly — who is giving her money. A modern rendition of Lady Justice would show her with one arm extended, reaching for large campaign contributions. Those contributions — from insurance companies, big business, tobacco companies, the building and health care industries, unions, trial lawyers, the religious right, and other special interests — do more than create a bad appearance. They seem to be having an effect on the decisions courts are making. If we want to preserve an independent and impartial judiciary — something that is a shining part of what America stands for, and an indispensable guardian of American rights — getting rid of the corrupting influence of money sloshing around in judicial campaigns is now a matter of genuine urgency. I. Bad Alchemy: Turning Judges Into Politicians It is no longer shocking that special interests have proved adept at corrupting Congress and state legislatures by using humongous campaign contributions to win government favors. Now, though, these same special interests are turning their attention, wallets, and political firepower to buying up state judges, calculating — correctly, sad to say — that pouring millions into helping to seat judges likely to side with them in important cases can be a darn good investment. Just how good an investment was driven home last month, when the United States Supreme Court declined, without comment, to review last year's 4-to-2 Illinois Supreme Court decision that threw out, on specious legal grounds, a $10.1 billion award against Philip Morris U.S.A. for enticing consumers to buy "light" cigarettes on a fraudulent promise they were lower in tar and nicotine. Predictably, critics of big consumer class actions — and of the plaintiff-friendly Illinois jurisdiction of Madison County in particular — joined the world's largest cigarette company in applauding the high court's pass. But some victory. The state Supreme Court justice who cast the deciding vote in the case, a former lower court judge named Lloyd Karmeier, received million of dollars in campaign support in 2004 that Philip Morris and other tobacco interests tendered for the very purpose of trying to reverse the enormous "light" cigarette award. They got what they paid for. Judicial ethics rules exempt campaign contributions from their otherwise strict approach of requiring judges to disqualify themselves whenever their impartiality might reasonably be questioned. But given the history, Justice Karmeier's failure to voluntarily recuse himself was a disgrace. The Philip Morris case, it should be noted, was not the first time that Justice Karmeier, a Republican, ruled for big contributors in a high-profile case. In 2004, fresh from the record-setting campaign brawl in which he and his Democratic opponent raised in the vicinity of $9.3 million in political contributions — an amount surpassing the fundraising totals in 18 U.S. Senate races that year — Justice Karmeier voted to reverse a breach of contract verdict of more than $450 million against State Farm Automobile Insurance Company. Legally, the result may not have been unreasonable, but it nevertheless carried a stench. While the case was pending, State Farm employees, lawyers, and others affiliated with the insurance company made $350,000 in direct contributions to Justice Karmeier's all-but-bottomless election war chest. Groups closely tied to State Farm gave over $1 million more. Mr. Karmeier Is Hardly Alone. Examples abound of state judges rendering rulings favorable to their large contributors in significant cases. Indeed, a study last fall of the Ohio Supreme Court by Adam Liptak, Janet Roberts, and Mona Houck of The New York Times found that sitting on cases after receiving campaign contributions from the parties involved, or from groups filing support briefs, is routine. In the 215 Ohio cases with the most glaring potential for conflicts of interest over a 12-year period, state justices recused themselves just nine times. Ohio justices voted in favor of their contributors 70 percent of the time. In 2002, Justice-at-Stake, a judicial reform group, surveyed 2,428 state court judges around the country. More than half of them candidly conceded that campaign donations influenced their decisions at least some of the time. With business interests —
including manufacturers of flawed and unsafe products and big
environmental Although the judiciary's big money problem is most visible at the
state Supreme Court level, where Last June, for example, The Los Angeles Times reported that 17 incumbent district judges in Nevada on the ballot of the last judicial election raised over $1.7 million in campaign funds. Much of the money was harvested from attorneys and casinos and other corporations with cases pending before them. Of the 17 incumbents, the report further noted, 13 ran unopposed, but collected nearly $1 million in campaign contributions anyway. At the end of the campaign,
they were sitting on unspent contributions of $634,000, which they
were not The resulting damage here
is palpable. Courts derive their legitimacy from their perceived
neutrality and II. The Turning Point Thirty-nine states choose at least some of their top judges by election, creating a patchwork of partisan and non-partisan contests, and uncontested up-or-down votes on appointed incumbents, known as "retention elections." In all, about 86 percent of America's judges are required to face voters. Judicial elections have always been a breeding ground for conflicts of interest. Beyond a candidate's relatives and personal friends, and a smattering of good government types, after all, who would feel motivated to contribute to the average judicial contest — except for those looking to improve the odds of favorable rulings, namely lawyers and their clients? But, until recently, contests even for the top state judgeships were typically quiet, low-visibility affairs, and the fundraising and conflict issues relatively benign. In many places, campaign contributions were less of a worry than other perennial problems, like undue clubhouse influence, partisan or ethnic voting defeating worthy candidates, low voter interest, and a shortage of quality candidates willing to run. But in just a few short years, state judicial campaigns have changed dramatically, and not for the better. Thanks to a huge influx of special interest money, once tame and dignified judicial contests are more and more degenerating into nasty and expensive partisan slugfests, complete with inaccurate and distorting TV ads that mimic the worst excesses of campaigns for Congress or governor. In the December 1 issue of American Lawyer, Alison Frankel retraces
the history of the successful
business-backed movement to remake the civil justice system to
render it less hospitable to product liability suits and high damage
awards for people's injury claims — the prime driving force turning
judicial elections into corruptive money pits. In the late 1980s in
Texas, Ms. Frankel recounts, a coalition of businesses and doctors
formed the Texas Civil Justice League and proceeded to lobby the
state legislature for a cap on punitive damages and other
pro-defendant changes in the law. As part of their strategy, they
also got heavily involved in state judicial elections by, among
other things, But the real turning point came in 2000. In October of that year, the United States Chamber of Commerce, the prominent business lobby, announced that it would spend more that $1 million on "educational" advertising in Mississippi and a handful of other states where companies complained of "frivolous" lawsuits. Its stated goal was to warn voters about judicial candidates who might overrule so-called tort reform legislation backed by business. The Ohio and Illinois Supreme Courts had already done just that, throwing out sweeping tort law changes approved by those states' legislatures on state constitutional grounds. The $1 million the national chamber of commerce was committing came on top of millions more it was already contributing to advertising campaigns being conducted by its affiliates in Michigan and Ohio dealing with Supreme Court races in those states. Officials of the national chamber contended more aggressive involvement in judicial races was necessary to counteract the influence of contributions trial lawyers were making to judicial campaigns. They were suggesting a link, not entirely unfairly, between trial lawyer largesse and rulings striking down pro-business "tort reform" laws passed by state legislatures. (Of course those laws' path through the legislatures had been well-greased by the chamber's own generous donations to state lawmakers' campaigns.) In 2000, state Supreme Court candidates collectively spent $45.6
million on their races, an astonishing 61 At least half of all donations came from two sectors of society with a big stake in court decisions: business interests and lawyers.
These swelling war chests launched unprecedented judicial "air wars," and a discernible coarsening in the tone of judicial campaigning. All together, more than $10 million was spent barraging voters with more than 22,000 airings of television ads, according to data contained in the 2000 edition of "The New Politics of Judicial Elections," the bi-annual report on judicial campaigns issued by Justice-at-Stake, New York University Law School's Brennan Center for Justice , and the National Institute for Money in State Politics. The television commercials, many of them decidedly un-judgelike attack ads, were bought either by the judicial candidates themselves or by political parties and interest groups. But at least, all those 15-second and 30-second TV ads were confined to just four states with fiercely contested races — Ohio, Mississippi, Michigan, and Alabama. The rest of the country was spared. III. The Virus Spreads In the 2002 election cycle, regrettably, more states were infected by this special-interest-money fever. More special interests began targeting state Supreme Court seats, and television ads became a mainstay of judicialelections in more than twice as many states as in 2000 — even though fewer states had contested elections that year. In Mississippi, the average cost of winning a judgeship skyrocketed to more than $1 million, compared to just under $400,000 two years earlier — the increase, perversely, both driven and underwritten by special interests. In June 2002, the U.S. Supreme Court, made it harder to contain the damage. Its 5-to-4 ruling in one landmark case, Republican Party of Minnesota v. White, struck down, on free speech grounds, a Minnesota rule forbidding judicial candidates from announcing their views on contentious public policy issues. The issue of candidate speech in campaigns for the bench, it should be said, is not a simple one. Once states decide to elect judges, voters need meaningful information so they can determine who, from their standpoint, would make a better judge, and candidates are entitled to leeway beyond what some state judicial codes have historically allowed to make their case. The difficult challenge, which Justice Antonin Scalia's majority opinion brushes past, is to spell out an approach that leaves adequate room for campaign speech while making clear that states retain the authority to draw a line against judges and judicial wannabes promising, or coming perilously close to promising, to rule a particular way on an issue percolating in the courts. Emboldened by the White ruling, state supreme court candidates and special interests spending on their own ran television ads in 11 competitive judicial races in 2002, appealing to voters by invoking hot button issues like tort liability and crime. In nine of those contests, the candidates who spent the most on ads won. Former Justice Sandra Day O'Connor, a fervent crusader in her retirement for preserving judicial independence, has lately expressed regret about her deciding vote in the White case. Justice O'Connor devoted most of her concurring opinion to detailing her longtime opposition to judicial elections and support for merit appointment of judges, but ultimately concluded that if states persist in having judicial elections, candidates must be allowed to have their full-throated say. Whatever one's view of the underlying First Amendment issue, the eloquent dissenting opinion filed by Justice Ruth Bader Ginsburg, warning of the potential for increased politicization and undermining of the judiciary's special role, now seems prescient. Justice Ginsburg and her fellow dissenters, Justices John Paul Stevens, Stephan Breyer, and David Souter, also pointed to the affront to due process when litigants must appear before judges whose apparent neutrality is compromised not just by campaign fundraising but by their outspoken statements on issues during an election. But back to the timeline. Since 2002, the involvement of moneyed interests in state Supreme Court elections has only escalated. The $24.4 million candidates and interest groups spent on TV ads in 2004 more than doubled the previous record set in 2000. The average amount raised by winning candidates who raised any money was about $650,000, compared to $450,000 in 2002. "A perfect storm of hardball TV ads, millions in campaign
contributions and bare-knuckled special interest This year the trend continued. Voters went to the polls in 22 contested Supreme Court races in 11 states on November 7. TV ads appeared in all but one of the states, and new candidate fundraising records were set in four states, according to the Brennan Center of Justice. In at least eight Supreme Court campaigns, fundraising totals soared past $1 million. In Washington State, independent advertising by special interest groups in furtherance of an unsuccessful primary campaign to oust the state's incumbent Supreme Court Chief Justice, Gerry Alexander, exceeded $1.3 million, according to a recent report in the Seattle-Post-Intelligencer. The doubts created about judicial impartiality are soaring just as rapidly. IV. The Race for a Cure Federal court administrators use the term "judicial emergency" to
refer to federal jurisdictions where the Of course, no method of choosing judges is perfect or altogether free of politics. Appointive systems breed their own set of confounding issues. That has never been more true than today, with the tremendous partisan wrangling at the federal level over the qualifications and ideology of presidential court nominees. But judicial elections that are increasingly polluted by enormous floods of special interest money are far worse. The disturbing role that money now plays — which is only getting worse — seals the case for abandoning elections in favor of merit selection. Even merit selection does not completely remove special interest money from the process — special interests can still contribute to governors, or whoever is doing the appointing, and they lobby for certain kinds of judges to be appointed. But by using a process that assigns a major role in the winnowing of applicants to an independent blue ribbon screening panel not controlled by the appointing elected official — the course long urged by many bar associations and civic groups — special interest influence can at least be limited. Unfortunately, merit
selection of state judges has to be a long-term goal. There is still
considerable popular support for the idea of electing judges, and
special interests that are doing well with their pay-to-play
contributions to judicial candidates have every selfish reason to
defend the status quo. Short of the wholesale replacement of judicial elections with a merit appointment system, the next best antidote would be replacing the special-interest money flowing to judges with clean public financing. North Carolina recently adopted a public financing system for judicial elections, and it seems to be working well so far in enhancing judicial independence. More rigorous financial disclosure is also needed. As Public Citizen has usefully detailed, for example, the Chamber of Commerce has a history of channeling electioneering money to front groups in order to disguise pro-business support for favored juducial candidates. It would also help if
judges who benefit from huge campaign donations from special
interests would have the good sense and decency to recuse themselves
when big cases involving those same interests come before them.
State bar associations, ethics boards, and state legislatures should
be pushing for tougher recusal rules — and pointing out the illogic
of saying that a small gift by a litigant to a judge creates an
impermissible conflict, but a multi-million-dollar campaign
contribution, which can make the difference between a judicial
candidate winning or losing his judgeship, does not. In states that
hold partisan judicial elections, switching to nonpartisan The U.S. Supreme Court, for
its part, should revisit its decision in the White case to at least
make clear that its permissive attitude toward candidate speech does
not extend to barring states from curbing the direct It is bad enough that the ever-increasing cost of running for legislative or executive office fosters cozy ties between politicians and special interests looking to influence government decisions. The extension of that seamy pathology to powerful elected judgeships marks a disturbing escalation of the political influence game. Judges are supposed to be different. Legislative and executive officials represent their various constituencies. Judges, in contrast, are supposed to represent only the ideal of justice. A judge deciding a case shouldn't be worrying how ruling a certain way might affect campaign fundraising, or whether it might invite a blitz of negative TV ads in the next election. It is time — long past time, really — to drain the influence money from America's system of justice. Lela Moore contributed research for this article.
Nevada
Judges Can Keep Raising Funds Scott Gold The High Cost Of Electioneering The Ledger Special Interest Cash Hits a Wall in Judicial Elections By Amanda Bronstad Special interest groups gave millions of dollars to judicial candidates in the month before last week's elections, but failed to defeat their opponents in some of the tightest races in the country. In the most expensive race, various business groups were unable to win the retention of the incumbent chief justice of the Alabama Supreme Court. A former appellate judge defeated the Republican candidate to become the sole Democrat on the state high court. In Georgia, an affiliate of the National Association of Manufacturers bankrolled a series of last-ditch television ads for a state Supreme Court candidate who lost after being accused of threatening to kill his sister. In Illinois, special interest groups sparked one of the most expensive appellate court races in U.S. history. And a Supreme Court race in Kentucky pitting an anti-abortion candidate against a self-declared impartial judge dealt a setback for judicial First Amendment advocates. "Business groups continue to spend a lot of money in a number of these campaigns," said Jesse Rutledge, communications director of the Justice at Stake Campaign, a bipartisan group in Washington that tracks judicial elections. But unlike in past election cycles, "this year, their investments, it appears, did not pay off." CASH COMPETITION Among the five Alabama Supreme Court races, Sue Bell Cobb, the challenger for chief justice, was the only Democrat to win. Campaigning as a churchgoing mother, Cobb raised more than $1.85 million in cash contributions from several political action committees (PACs) and the state Democratic Executive Committee. Chief Justice Drayton Nabers Jr., who boasted an anti-abortion stance in TV ads, raised $3.9 million in cash contributions from state tort reform PACs. The American Taxpayers Alliance, a group that has received funds from the U.S. Chamber of Commerce, paid for Nabers' ads in the primaries. Although Nabers outspent her, Cobb acknowledged how much she raised in contributions. "We were very cognizant of the fact that we had to have sufficient resources to prevail," she said. "Do I think that's an attractive part of the process? No, I do not. Do I want that to change? Yes, I do." Georgia hosted one of the most negative judicial campaigns in U.S. history as special interest groups waded into the race during its final weeks. Mike Wiggins, an attorney for the Bush administration, raised about $275,000 for a Supreme Court seat. But the Safety and Prosperity Coalition, an independent committee that received contributions from the American Justice Partnership, an affiliate of the National Association of Manufacturers, paid for several ads accusing incumbent Justice Carol Hunstein of ignoring case law and being soft on crime, according to Justice at Stake. Dan Pero, president of the American Justice Partnership, said he feared Hunstein would legislate from the bench. In response, Hunstein launched an ad accusing Wiggins of having been sued by his mother for money and allegedly threatening to kill his sister when she was eight months pregnant. Hunstein is the first judicial candidate in Georgia to raise nearly $1 million in a campaign, mostly from trial lawyers. Illinois faced a record-breaking race for 5th Appellate Court, home to Madison County, nationally known for its plaintiff-friendly verdicts. Saline County Presiding Judge Bruce Stewart, a Democrat, defeated Republican incumbent Steve McGlynn, who raised $2.1 million, mostly in last-minute contributions from the American Tort Reform Association, the Illinois Republican Party and the American Justice Partnership. Stewart, with about $900,000, received support from labor unions and the Democratic Party of Illinois. Pero of the American Justice Partnership said, "this was not particularly a good year in a lot of parts of the country to have an 'R' by your name." But he predicted more groups would help finance future appellate races. While not the most expensive, the race for a Kentucky Supreme Court seat exemplified the debate over whether judicial candidates should make political or legal statements. Pledging impartiality, Circuit Judge Bill Cunningham defeated Rick Johnson, a Court of Appeals judge who campaigned against abortion. "The candidates who take a more aggressive First Amendment approach are consistently meeting with failure at the ballot box," Rutledge said. Public Thinks Campaign Cash Sways Judges By Elaine Silvestrini TAMPA - As candidates in Hillsborough County's four judicial races work to convince voters they have integrity, the money fueling their campaigns may be undermining that message. Although Americans trust the courts more than other branches of government, the public thinks judges are influenced by campaign fundraising, according to a recent survey by the Annenberg Public Policy Center at the University of Pennsylvania.The survey found that 70 percent of the public think campaign contributions affect judges' rulings. Even some judges agree. A 2002 survey found that 30 percent of Florida judges and 26 percent of state judges nationwide think campaign contributions influence judges. In Hillsborough County circuit judge elections, fundraising is on the increase. The eight candidates for four runoff races have raised an average of $57,800 in contributions each, not counting loans they made to themselves. That's an increase of 21 percent from the average of $47,814 raised by the four candidates who ran in circuit judge runoff elections in 2002, the last time runoffs were held. Counting loans they made to themselves, the eight candidates for judge in Hillsborough runoff races have raised a total of more than $1.2 million, according to state election records. When the candidates' own money is subtracted, the total campaign contributions are about $460,000, the vast majority coming from lawyers. State law limits individual contributions to $500. "I can tell you unequivocally that it appears these numbers are quite substantial and they reflect a growing trend in Florida and nationally," said Tom Scarritt, chairman of the Hillsborough County Judicial Campaign Practices Committee. Judicial elections "are becoming more and more like every other political race. The numbers are becoming obscene." Scarritt, whose committee was deactivated this year, said he has served as campaign finance director and treasurer in past judicial races. "I find it completely awkward and unseemly that judges have to, through others, walk out and stick their hand out to the lawyers that come before them. That just doesn't work. But that's the system we have." "Something's Wrong'"When it takes money to get to the bench in that way, something's wrong," said Bert Brandenburg, executive director of Justice at Stake, which he described as a nonpartisan national partnership of more than 40 judicial and good-government organizations. "Getting the best judge should not be a race for dollars." "It bothers me that we have a system that includes judges receiving campaign contributions," said Henry M. Cox III, president of The Florida Bar. With nearly $100,000 in campaign contributions, Bernard C. Silver has raised the most money of any of candidate in the four Hillsborough judicial runoff elections. Silver isn't worried that the contributions will affect his ability to be a fair judge if he wins Tuesday's election. "That would never be an issue with me in terms of whether or not a lawyer has contributed to my campaign," he said. Silver said the amount of contributions he received is really evidence of his ability to be fair. "Those people that contribute to my campaign believe, I think, in my honesty and integrity," he said. His comments were echoed by other judicial candidates, some of whom pointed out that campaign contributions are public record, available to anyone on the Internet. One candidate, Paul Jeske, admitted he had "sticker shock" when he realized how much money was needed to run a judicial campaign. Jeske, who has raised $71,390, not counting loans to himself, said he "could not criticize" the public opinion that campaign contributions influence judges. "I can certainly understand it," he said, adding, "If I thought I was ever in a position where it became a question in my mind that I was biased for or against someone, then I would be the first to bring it up." During a recent meeting of The Florida Bar Committee on Judicial Independence, Cox, the Bar's president, asked participants how litigants can trust judges when campaign contributions are involved, according to The Florida Bar News. "How does Joe Plumbing Co. think, 'I'm getting a fair shake,' if the other side's lawyer gave the judge $500 and his lawyer didn't contribute?" Contributions And RecusalJudges are required to recuse themselves from ruling in cases in which their impartiality may reasonably be questioned. But Florida courts have held that campaign contributions alone - or even a lawyer's service on a judge's campaign committee - are not sufficient to require recusal. "Lots of attorneys give lots of judges money," said Ana Cruz, campaign manager for judicial candidate Kim Fernandez. "They spend their lives in these courthouses, and they know these people. A lot of them are friends … If a judge wanted to recuse him or herself every time someone who gave them a campaign contribution appeared before them, I can't imagine how the docket would run. Very slow, I would imagine." Hillsborough Circuit Judge Robert Foster, who won re-election in September, said recusal over campaign contributions has never been an issue for him. He said no one has ever asked him to recuse himself because of them. But if someone asked him to remove himself from a case on that basis, he would. "If someone thought I could not be fair and impartial that's appearing in front of me, why create an issue?" he said. Judge Gary M. Farmer of the 4th District Court of Appeal is worried that the current system creates problems. "Any reasonable person could understandably fear a judge's impartiality when the opposition gave money or served on her election committee," Farmer wrote in a 2005 opinion. Farmer urged judges to recuse themselves in cases in which attorneys have made campaign contributions. "If such a regime is too disruptive to the operation of courts, well then maybe we should rethink our dedication to the direct election of judges," he wrote. The vast majority of states have elected judges, and those elections are "unlikely to go away," said James Sample, associate counsel for the Democracy Program at the Brennan Center for Justice at New York University School of Law. "The prevailing view is citizens in those states believe judicial elections give them a means of holding their judiciaries accountable." Floridians rejected a ballot initiative in 2000 that would have changed the system to have judges appointed by the governor. "If judicial elections are going to be expensive, and that seems to be the trend, then candidates are going to be faced with a Catch 22: Either they go out and raise money, or they risk losing," Sample said. "It's almost like an arms race, and it's very difficult to sit it out. "The question is what can be done in a narrowly tailored, targeted way to improve judicial elections and to improve public confidence in the court," Sample said. Public FundingOne answer is public funding of judicial campaigns, but that hasn't caught on, except in North Carolina, which has adopted public financing for appellate judicial races. Florida appeals court judges and Supreme Court justices do not face opponents for re-election. Instead, voters decide whether they should be retained. Sample said one possible reform would be the creation of internal oversight bodies that can apply recusal requirements "without the sort of gamesmanship that would affect judicial independence." Big Money Erodes Judges' Credibility US Today Yet people are going into courts across the nation these days in which the playing field looks just as tilted. That's because once-staid judicial elections have turned into big-money brawls among special interests, often with big business and trial lawyers vying for a friendly judge on the court. This year, candidates are seeking 25 high court seats in 11 states. Several races have set spending records. In Alabama, $7.3 million has been spent in five races. Georgia is heading for a record spending of $1.1 million, much of it for one contested seat. The dismaying result of these special-interest battles has already played out in Illinois. In 2004, business interests and trial lawyers spent about $9 million battling over a seat on the state's high court. Justice Lloyd Karmeier, the business-backed candidate who won, cast the deciding vote last year in two closely-watched cases — both times in favor of business interests. In one of them, a $10 billion judgment against cigarette-maker Philip Morris was reversed. Karmeier won't comment, and no one can say why he voted as he did. But such circumstances undermine the public's faith in unbiased justice. Had Karmeier's opponent won and sided with the trial lawyers, the outcome would have been just as suspect. There are better ways to pick judges. One is by appointment based on merit. Another is through publicly financed elections. Special-interest money erodes the legal system's credibility. When judges owe their jobs to somebody's big bank account, justice looks as if it's for sale. Campaign Cash Mirrors a High Court’s Rulings By Adam Liptak and Janet
Roberts COLUMBUS, Ohio — In the fall of 2004, Terrence O’Donnell, an affable judge with the placid good looks of a small-market news anchor, was running hard to keep his seat on the Ohio Supreme Court. He was also considering two important class-action lawsuits that had been argued many months before. In the weeks before the election, Justice O’Donnell’s campaign accepted thousands of dollars from the political action committees of three companies that were defendants in the suits. Two of the cases dealt with defective cars, and one involved a toxic substance. Weeks after winning his race, Justice O’Donnell joined majorities that handed the three companies significant victories. Justice O’Donnell’s conduct was unexceptional. In one of the cases, every justice in the 4-to-3 majority had taken money from affiliates of the companies. None of the dissenters had done so, but they had accepted contributions from lawyers for the plaintiffs. Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year. Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign. As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation. And nowhere is the battle for judicial seats more ferocious than in Ohio. An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court. In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors’ cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times. Even sitting justices have started to question the current system. "I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race," said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. "Everyone interested in contributing has very specific interests." "They mean to be buying a vote," Justice Pfeifer added. "Whether they succeed or not, it’s hard to say." Three recent cases, two in Illinois and one in West Virginia, have put the complaints in sharp focus. Elected justices there recently refused to disqualify themselves from hearing suits in which tens or hundreds of millions of dollars were at stake. The defendants were insurance, tobacco and coal companies whose supporters had spent millions of dollars to help elect the justices. After a series of big-money judicial contests around the nation, the balance of power in several state high courts has tipped in recent years in favor of corporations and insurance companies. In the 2002 Ohio judicial election, for example, two candidates won seats that year on the seven-member court after each raised more money than one of the candidates for governor that year. Corporate Giving Increases Judges are required by codes of judicial ethics to disqualify themselves whenever their impartiality might reasonably be questioned over financial or other conflicts. Even owning a few shares of stock in a defendant’s company or seeing a relative’s name on a brief generally requires automatic disqualification. But there is an exception to this strict rule: campaign contributions. Very few judges in the states that elect the members of their highest court view contributions as a reason for disqualification when those contributors appear before them. Many judges said contributions were so common that recusal would wreak havoc on the system. The standard in the Ohio Supreme Court, its chief justice, Thomas J. Moyer, said, is to recuse only if "sitting on the case is going to be perceived as just totally unfair." Duane J. Adams, a plaintiff in one of the class-action suits heard by Justice O’Donnell, concerning defective cars, said he questioned the impartiality of the justices who ruled against him. Mr. Adams had sued DaimlerChrysler under the state’s lemon law, and he grew angry when told that the company’s political action committee had given money to justices in the majority. "At the very least, it’s a conflict of interest," Mr. Adams said. "These gentlemen, they should be prosecuted for what I consider is taking a bribe." He and the other plaintiffs did not contribute, but their lawyers gave to the campaigns of five of the justices. Precisely what contributors want or get for their money is unclear. Some contributors say they have no agenda beyond ensuring that able and independent judges are elected. Others surely hope to influence the justices’ votes in particular cases. The middle ground, advanced by groups representing business, labor and plaintiffs’ lawyers, is to support justices who hold views similar to their own. "Various interests see voting patterns," Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy. If that is right, contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court. And they are succeeding. Not long ago, the Ohio Supreme Court was controlled by liberal justices whose campaigns had been financed in large part by plaintiffs’ lawyers and unions. Now that business groups are outspending their adversaries, the court has become dominated by more conservative justices. And the court’s decisions are no longer markedly sympathetic to people claiming injuries. Justice O’Donnell, a Republican, won his seat with the help of big contributions from the insurance, finance and medical industries. He is running for re-election this year, and his opponent, Judge William O’Neill, is making contributions an issue. "We have to stop selling seats on the Ohio Supreme Court like we sell seats on the New York Stock Exchange," said Judge O’Neill, a Democrat on the 11th District Court of Appeals in Warren, in northeast Ohio. He says he will not accept contributions. Justice O’Donnell, who has raised more than $3 million since 2000, refused to be interviewed for this article despite more than a half-dozen requests to his campaign, his chambers and the court. In a statement, he said, "Any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary." "A judge," the statement said, "may fairly and impartially consider matters despite receipt of the campaign contribution by the campaign committee." Interest groups play a powerful and generally accepted role in races for legislative and executive positions. But their increasing role in identifying and supporting judicial candidates is at odds with the traditional concept of what judges do. "The role of the judge and the role of the legislator are completely different," said William K. Weisenberg, an Ohio State Bar Association official. "You want a legislator to vote the way you would vote. When you go into court, you want someone to listen to the facts and decide the case on the facts and the law. We don’t want the umpire calling balls and strikes before the game has begun." Influencing the Bench Many judges concede that sitting on their contributors’ cases creates the perception that their votes can be bought. But in public, at least, most insist the perception is wrong. "All the surveys I’ve seen indicate that generally 75 percent of the people believe that contributions influence decisions," said Chief Justice Moyer, a Republican. But when asked if contributions played a role in courts’ decisions, he said: "I don’t believe they do. I know they don’t for me." That view is not universally held. "It’s pretty hard in big-money races not to take care of your friends," said Richard Neely, a retired chief justice of the West Virginia Supreme Court of Appeals. "It’s very hard not to dance with the one who brung you." Indeed, according to a survey of 2,428 state court judges conducted in 2002 by Justice at Stake, a judicial reform organization, almost half said campaign contributions influenced decisions. And more than half agreed that "judges should be prohibited from presiding over and ruling in cases where one of the sides has given money to their campaign." The Times study explored the influence of money on judicial decision-making by asking two basic questions about the Ohio Supreme Court. How often did it hear cases involving major contributors? And how did justices vote in those cases? The study considered only cases that were both significant and difficult. It excluded procedural decisions, including whether to hear or reconsider a case. And only divided cases — those in which there was at least one dissent — were considered, because those presented the most contentious legal issues. In the 12 years ended this spring, there were about 1,500 such decisions. The study looked at contributors who gave $1,000 or more in the six years preceding the decision, the term length for justices. It also considered, for the most part, only the contributors most directly affected by a ruling: the parties themselves and groups that filed supporting briefs urging the court to rule a certain way. Contributions from lawyers were excluded from the study’s main findings. Lawyers are far more likely than other contributors to give to judges across the ideological spectrum, and — because their firms often handle a wide variety of cases — they generally do not have the intensely focused interest in the outcome of a particular case that their clients do. More than 200 times, moreover, justices sat on cases after receiving contributions from lawyers on both sides. The court’s decisions, the study found, were rife with potential conflicts. In more than 200 of the 1,500 cases, at least one justice cast a vote after receiving a significant campaign contribution. On scores of occasions, the justices’ campaigns took contributions after a case involving the contributor was argued and before it was decided — just when conflicts are most visible and pointed. Contributors did well with those whose campaigns they had financed. Of the 10 justices in the Times study, 6 sided with contributors more than 70 percent of the time. Justice O’Donnell, who has been on the court for only three years and has participated in fewer decisions than most of the justices studied, had the highest rate — 91 percent. Lawyers who gave money were not nearly as successful. Five justices voted for the positions represented by these contributors half of the time, and the average rate was 55 percent. Recusals in cases involving contributors were all but unheard of. Six of the seven sitting justices — all except Justice O’Donnell — agreed to interviews for this article, and all said contributions had not affected their decisions. "There is a lot more to the story than the cold numbers suggest," said Justice Maureen O’Connor, a Republican who voted for her contributors 74 percent of the time. Some cases are more significant than others, she said. Similarly, she and other justices criticized the decision to omit from the study the court’s terse rulings on whether to hear a case at all. Many of these decisions are routine or trivial, however, and the rulings themselves do not contain sufficient information to be readily categorized. In his statement, Justice O’Donnell said that "selectively screening a limited number of case decisions results in a skewed outcome." He did not elaborate. But Justice Pfeifer, who voted for his contributors 69 percent of the time, backed the study’s methodology. "I quite frankly can’t think of another way," he said. "You’re using the only yardstick that I’d know of that you can use." Several justices said they found Ohio’s money-fueled judicial elections distasteful and troubling. They pointed out, though, that Ohio law has mechanisms to limit contributions and to insulate justices from contributors, including a ban on personal solicitations by the justices. Some said they tried to avoid learning the identities of their many contributors, though they conceded it could sometimes be unavoidable. Justice Evelyn Lundberg Stratton, for instance, said she had attended 50 fund-raisers during her last campaign. None of the justices interviewed suggested that more frequent recusals from contributors’ cases would be a positive step rather than a recipe for havoc. Last year, though, five justices did recuse themselves from a case involving a Republican fund-raiser, Thomas W. Noe. They had taken $23,510 from Mr. Noe and his wife. Appeals court judges filled in for the justices. "It is not necessary for a judge to recuse himself just because an attorney or party has contributed to his campaign," Chief Justice Moyer said in a statement at the time. "However, this is a high-profile case with political implications and with potential personal consequences for the campaign contributor in question." Some legal experts say that recusal should be the rule and not the exception. Indeed, in 1999, the American Bar Association revised its Model Code of Judicial Conduct to require judges to disqualify themselves if they received campaign contributions of a certain amount from a party or its lawyer. But the bar association did not name an amount, leaving it to the states should they adopt the code. No state has adopted it. Unlike campaign contributions, direct gifts to judges, even relatively small ones, almost always require disqualification. In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge for accepting football tickets from Stuart Banks, a lawyer who had appeared before the judge. Yet three of the justices who issued the reprimand had accepted at least $1,000 each in contributions from Mr. Banks in the previous 10 years. Those same justices also sat on several cases in which Mr. Banks appeared before them. Ruling on a Lemon Law From the day he leased it in 1996, when it leaked transmission fluid all over the garage, Duane J. Adams’s Dodge Caravan was nothing but trouble. "My wife went to start it at the grocery store, and the battery blew up," Mr. Adams said. "We didn’t feel safe in it." Mr. Adams invoked Ohio’s tough lemon law, which calls for a refund for defective cars. DaimlerChrysler took the car back after an arbitration found the car defective but deducted a $6,000 "mileage fee." Mr. Adams and other Ohio car buyers filed a class-action lawsuit against three car companies that routinely imposed such mileage fees in settlements and arbitrations. Drawing on a 1996 appeals court decision that banned the fees and the fact that the Ohio Legislature had rejected such fees when it enacted the law, an appeals court allowed the case to go forward in 2003. In the first week of November 2004, while the case was pending in the Ohio Supreme Court, the political action committee of DaimlerChrysler, a defendant, gave $1,000 each to the election campaigns of Chief Justice Moyer and Justice O’Donnell. Two months earlier, the committee of a second defendant, Ford, gave those same justices $500 apiece. From 2000, when the suit was filed, to 2004, when it was decided, the affiliates of the three companies gave $15,000 to four of the justices on the case. Still, all four of the justices continued to sit on the case, and all of them were in the majority in the 4-to-3 decision issued on Nov. 10, 2004, just days after the last set of DaimlerChrysler contributions. The justices ruled that the plaintiffs had voluntarily accepted settlement offers or arbitration awards with the mileage fee deducted. The ban on the fees applied only to lawsuits filed in court and not disputes resolved less formally, the majority said. The three dissenting justices said the majority’s ruling gave the plaintiffs an impossible choice: to pursue a lawsuit that could cost more than the car itself or to accept the reduced sum. Elaine Lutz, a spokeswoman for DaimlerChrysler, defended the company’s actions. "The contributions that companies’ PAC’s make are driven by the campaign calendar, not the judicial calendar," Ms. Lutz said. Candidates for the court may accept contributions for about a year before an election and four months afterward. Lawyers for Ford also said it complied with Ohio law. "By definition," said one of the lawyers, John Beisner, "if you have an elective system, the judges are going to go to those with the greatest interest in the system to get their contributions." Car company lawyers said the contributions were merely an effort to level the field against big-spending plaintiffs’ firms. In the lemon-law case, though, the overall contributions were tilted heavily in favor of the companies and their own lawyers. Mr. Adams and the other named plaintiffs gave no money to the justices. While the case proceeded, their lawyers contributed about $12,000 to five of the seven justices in the case, dividing their money roughly evenly between a justice who voted for them and several who voted against them. The law firms representing the companies gave only to the justices in the majority, for a total of more than $115,000. That was consistent with national trends. "The current wars are epic battles between businesses and trial lawyers," said Bert Brandenburg, the executive director of Justice at Stake. "Over the past half-decade, business groups are outraising and outspending trial lawyers." A week after the lemon-law case was decided, the court announced another ruling in favor of a business. This one halted a class action to support the medical monitoring of workers who had been exposed to beryllium, a potentially toxic substance. The vote was 5 to 2. Employees and the political action committee of the parent company of the defendant, Brush Wellman, gave a total of $5,700 to four justices, more than $2,600 of it after the case was argued and before it was decided. All four were in the majority. Patrick Carpenter, a spokesman for Brush Wellman, said its political action committee "contributes to deserving candidates in the interest of advancing good government" and noted that the workers’ lawyers had also given to the justices. The lawyers gave about $20,000 to several justices, though most voted against the workers. Mr. Carpenter also said the company had lost a 2002 decision by a 4-to-3 vote, before the court’s conservative wing took over. Michael Fincher, a 48-year-old roofer who was a plaintiff in the beryllium suit, said the contributions meant he had not received impartial justice. "I don’t think it’s appropriate, period," Mr. Fincher said. Screening the Candidates Business groups have turned picking potential justices into an art. "They study very carefully the field of potential candidates, really studying their backgrounds and what makes them tick, and picking a person who is liable to be leaning their way," said Justice Pfeifer, who has shown an independent streak in his 14 years on the court. He did not name names. Justice O’Donnell’s campaign materials say he is "rooted in law enforcement" as the son a Cleveland police officer. They also note that he served as a law clerk and taught elementary school students and paralegals. In 20 years on lower courts before his appointment to the Supreme Court in May 2003, he created a long paper trail of conservative decisions. On the Supreme Court, he has helped consolidate its transformation from a court that routinely ruled against corporations and insurance companies to one quite friendly to business interests. In 2004, running to complete the six-year term to which he had been appointed, Justice O’Donnell had a million-dollar advantage over his opponent that led to an Election Day rout. Now that same opponent, Judge O’Neill, is back for a rematch. His campaign slogan: "No money from nobody." Contributing to candidates for states’ highest courts can be money well spent in at least one sense: the courts are very powerful. They have the last word on most of the issues that come before them. The United States Supreme Court has no jurisdiction over cases that present pure questions of state law, and in any event it hears only about 80 cases a year. The states use various methods to choose their judges. The approaches are often some combination of nominating commissions, governors’ and legislative action, and popular voting, including partisan contests and retention elections. Political machines still play a role in some states. In the federal system, by contrast, judges are appointed by the president, confirmed by the Senate and awarded lifelong tenure. "Although there may be no good method of selecting and retaining judges, there is a worst method, and Ohio is among the states to have found it," Paul D. Carrington and Adam R. Long wrote in a 2002 study of the Ohio Supreme Court in the law review of Capital University here in Columbus. "That worst method is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants and special interest groups, and retain their offices only by continuing to raise such funds." The problem, the authors found, is not a new one, but one that grows with the sums involved. Ohio started electing judges in 1851, and the system seems unlikely to change. Voters overwhelmingly rejected a proposed return to an appointive system in 1987. In the 1980’s, a campaign for a seat on the Ohio Supreme Court cost $100,000, compared with the $2 million a candidate may raise and spend these days. Much of the recent spending came from business groups furious with what they called a liberal "Gang of Four" on the court after a pair of 1999 decisions. One of the decisions struck down a law revising the treatment of injury cases. The other interpreted employers’ insurance policies broadly to cover some off-the-job injuries. In 2000, business groups mounted a multimillion-dollar campaign to unseat Justice Alice Robie Resnick, a Democrat who wrote the first decision and joined the second. One advertisement showed a female judge switching her vote after someone dropped a bag of money on her desk. Her opponent was Judge O’Donnell. He refused to denounce the attack advertisements, which seemed to backfire with voters. Justice Resnick won the election with 57 percent of the vote. From that election on, "Ohio became a poster child for everything that was wrong with judicial elections," said Mr. Weisenberg, the Ohio State Bar Association official. Money poured in, from political parties, from trial lawyers and especially from business interests. Contributions from people and entities affiliated with the finance and insurance industries totaled more than $800,000 in 2004. Doctors and the health care industry contributed more than $440,000. The Balance of Power Shifts Interest groups on the other side give, too, and the justices they support overwhelmingly vote their way. But Justice Pfeifer says the balance of financial power has shifted to business groups. "I don’t care how well a trial lawyer does or how big a pot a labor union has," he said, "they can’t begin to match the business corporations. It’s not a fair fight." Justice Stratton, a Republican, said the recent contributions from business groups were a predictable consequence of a series of rulings "very strongly in favor of trial lawyers." "You only have the big money coming out," she said, "when the court has swung too much to the left or to the right." In 2002, Lt. Gov. Maureen O’Connor, a Republican, won a seat on the court, replacing a more liberal Republican justice and altering the balance. Her campaign took more than $330,000 from affiliates of insurance companies and medical groups. Not long after she joined the court, Justice O’Connor wrote the opinion that overruled the 1999 insurance decision. Only four years after the court ruled that employers’ insurance policies covered many off-the-job injuries, it reversed course. "It serves no valid purpose to allow incorrect opinions to remain in the body of our law," Justice O’Connor wrote for the majority. The vote was 4 to 3. The shift in personnel had a prompt impact on other cases, too. Since then, law firms that work mostly for plaintiffs have fared poorly in the court. A look at a sample of 14 big plaintiffs’ firms showed that they won 64 percent of the cases in the study before 2003. In the next three years, after the rise of the court’s conservative wing, their success rate dropped to 17 percent. Since 1995, Ohio has imposed campaign contribution limits. They are $3,000 from individuals and $5,500 from organizations for each judicial election. Primary and general elections are counted separately. A Critic Takes On the System But, depending on how donations from individuals and political action committees are counted, the limits do not stop some businesses from making very large aggregate contributions. Affiliates, employees, officers and directors of the Cincinnati Insurance Company, for instance, gave more than $200,000 to Ohio Supreme Court candidates from 1998 through 2004. Joan Shevchik, a spokeswoman for the parent company of Cincinnati Insurance, Cincinnati Financial Corporation, cited the effort to overturn the 1999 decision as a reason for the contributions, but emphasized that the corporation itself gave nothing. "As insurance professionals," she said, "each of us sees up close the immediate impact that the Ohio Supreme Court has on the industry, our company and our policyholders." There is a small printing press in the garage of Judge O’Neill. In the evenings, he and his children produce fliers for a long-shot no-money campaign for Justice O’Donnell’s seat on the Ohio Supreme Court. "We’re going to do a million pieces for $4,000 from my pocket," Judge O’Neill said, explaining that he will not accept a penny in contributions. Even some of his supporters view his effort as quixotic, notwithstanding the higher ratings Judge O’Neill gets from many Ohio bar associations. "They’re out soliciting the next million dollars to beat me," he said. "The insurance industry, the manufacturers and now the doctors treat the Ohio Supreme Court as a personal piece of property." Justice Resnick, the last Democrat on the court, is retiring this year, and her seat is also open, making an all-Republican court next year a distinct possibility. Marc Dann, a Democratic state senator running for attorney general, said Judge O’Neill’s strategy might have been driven by necessity as well as principle. "Best case," Mr. Dann said, "maybe he goes to the plaintiff’s bar and labor unions, and maybe he raises $300,000. To do a good week of TV in Ohio is $750,000." Judge O’Neill’s assertion that seats on the Supreme Court are for sale infuriates many in the legal establishment in Ohio, and in July 2004 the Disciplinary Counsel of the Ohio Supreme Court began an investigation into whether Judge O’Neill had violated judicial ethics by making similar statements in the last campaign. Judge O’Neill laughed when asked if the investigation worried him. "I am a Vietnam veteran, and I lost my wife 10 years ago," he said. "I raised four kids by myself. When you talk about fear, I fear big things in life. Being hauled before a disciplinary counsel does not qualify." For the time being, a federal judge has suspended the investigation on First Amendment grounds. If the Ohio Legislature is troubled by Judge O’Neill’s conduct, the federal judge, Ann Aldrich wrote, "the proper solution is to stop electing judges and make state judgeships appointed offices." Judge O’Neill disagreed. He likes elections, he said. "We have more authority over people’s lives than anyone else in elected office," he said. "We decide who goes to jail and who gets out of jail. We decide what happens to your life savings after you die. We decide whether or not you will be permitted to finish raising your child. I can’t think of any other industry that has a more profound impact on people’s lives. And it is arrogant at best that some committee should make this appointment." But Chief Justice Moyer said the flaws in Ohio’s approach were the product of elections. "In a perfect world," he said, "you would have justices being selected not based on the amount of money their campaign committees can raise from various interests, but on their character and record — and somewhat on judicial philosophy, certainly, but in a more abstract way." Adam Liptak reported from Columbus, Ohio, and New York, and Janet Roberts reported from New York. Mona Houck contributed reporting from New York.
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Special-interest
lobbies are pouring unprecedented millions of dollars into Supreme
Court races, with the intent of electing justices who will advance
or protect their financial interests. (smokysavers.com) |
A Feast
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