Oregon spending on Judge races makes national news

Judicial elections turn expensive, polarized, and nasty
U.S. NEWS / By Scott Michels / 6/16/06

Alabama Supreme Court Justice Bernard Harwood is no stranger to hard-fought elections. When he won a seat on the high court in 2000, he was one of the top fundraisers in the state with the most expensive judicial elections in the country. But, lately, Harwood, who is stepping down next year, sees a turn for the worse. By the end of this month's Republican primary, nearly $2.7 million had been spent on television ads alone in Alabama's Supreme Court races, with one justice attacked as a "Jimmy Carter-style liberal," and ominous ads insinuating that a candidate would legalize gay marriage. "It has a very demeaning effect on the profession of law as a whole and the judiciary in particular," says Harwood.

State court elections have traditionally been sleepy affairs, as decorum dictated that candidates remain above the fray of partisan politics. No more. Over the last several years, state judicial campaigns have become high-stakes political battles–expensive, polarized, and, at times, nasty. In 2004, judicial candidates raised a record $46.8 million, more than double the amount in 1994. And, with complaints about "activist judges" in the news and special-interest money flooding in, election observers warn 2006 could be more contentious than ever.

"If the trends stay true to what we've seen, we're going to see more TV ads, more money, and more interest groups involved," says Deborah Goldberg of the Brennan Center for Justice at New York University, which tracks judicial campaigns. "Things are going to get much worse before they get better."

More than 80 state Supreme Court seats in 30 states are in play this year, though many are not contested. Candidates in Alabama's primary spent a combined $4.6 million, and the Washington, D.C.-based American Taxpayers Alliance separately spent almost $1 million in advertising, according to the Brennan Center.Candidates in Oregon, not usually a judicial battleground, are on track to spend more than $1 million, a first in state history. Nearly every judge in Kentucky is up for election. Tight, and expensive, races are also expected in Washington State, Ohio, Georgia, and Michigan. And activists in a few states are pushing to move from appointed judges to elections, which they say will assure accountability to voters.

The high cost of elections is a trend, critics warn, that could have lasting consequences. "When you have interest groups pouring millions and millions of dollars into elections, the impression people get is that judges can be bought and that justice can be bought," says Michael Greco, president of the American Bar Association. "The damage that does to the people's confidence in a fair judiciary is incalculable." More than 70 percent of people in a 2004 survey commissioned by Justice at Stake, which promotes campaign finance reform, thought campaign contributions had at least some influence on judges' decisions.

But proponents of elections, who argue that judges should be as accountable as the legislature, point to recent court decisions that they say are out of step with the beliefs of most voters. "Judges should be accountable to the voters, and the voters should know who they are and what their judicial philosophies are," says Bruce Hausknecht, a judicial analyst with Focus on the Family Action, the lobbying branch of Focus on the Family.

The rising cost of judicial elections is being fueled, in large part, by the national fight over "tort reform." Trial lawyers and pro-business groups, who want to limit the size of jury verdicts, are consistently the largest judicial campaign contributors. In the last several years, business groups, led by the U.S. Chamber of Commerce, have funneled tens of millions of dollars into key races in states known for high jury verdicts in product-liability cases, such as Alabama and Illinois, successfully unseating a number of judges. In 2004, the chamber said, it won 12 of 13 targeted races. And in Alabama, the one-time majority Democratic high court now has an 8-1 Republican, and business-friendly, majority.

The same interests should be involved this year, and may spread to other states. Weeks before the primary in Oregon—where the high court recently upheld a $79.5 million verdict against Philip Morris—one candidate received $150,000 from a group founded by the National Association of Manufacturers to limit jury verdicts. (His opponent has accepted smaller contributions from lawyers and the Gay and Lesbian Victory Fund, among others.) Pro-business groups also heavily supported the winners in Alabama's primary, all incumbents. The American Taxpayers Alliance has, in the past, received funding from the chamber.

Much of the cacophony in Alabama, however, was over social issues. A group of challengers, some of them protégés of former Justice Roy Moore, who was removed from the court for refusing to take down a Ten Commandments monument, argued that state courts should ignore Supreme Court decisions that they thought were unconstitutional. Since 2002, when the Supreme Court in Minnesota Republican Party v. White struck down some restrictions on what judicial candidates may say, pressure has grown for prospective justices to take positions on social issues. Groups now send questionnaires to judges asking their views on abortion, gay rights, and school prayer, among other issues. To supporters, asking candidates to explain their beliefs is a matter of accountability. "All judges have values, all judges have points of view," says James Bopp, the attorney who represented the GOP in White, and who has also represented the American Taxpayers Alliance. "The question is, are the voters going to know them or not?" Bopp, who says candidates should not promise a particular outcome in a specific case, is challenging rules in several other states that prohibit candidates from answering questionnaires, endorsing other political candidates, and soliciting campaign contributions, and has won in Kentucky, North Dakota, and Alaska. Other suits are pending in Kansas and Pennsylvania. "To pretend that a blind and ignorant electorate somehow keeps the judiciary's reputation aboveboard is simply foolishness," says Kent Ostrander, director of the Family Foundation in Kentucky.

Nor does big spending necessarily trouble everyone. "If you can't raise money to get your message out, then you don't have a message," says Bopp. Justice Terrence O'Donnell, who is running for re-election in Ohio, says the state's contribution limits prevent judges from being beholden to donors. "What does a $5,000 contribution do in a state the size of Ohio? Probably very little," he says. (His opponent, William O'Neill, has refused to accept any contributions.)

Nevertheless, fights over the influence of money and divisive social issues are going on in several states. Groups in Kansas and Arizona are now pushing for direct elections of judges. An initiative in South Dakota in 2004 that would have changed to judicial appointments of trial court judges was defeated after Focus on the Family's James Dobson encouraged voters to reject it. North Carolina adopted a public financing program in 2002, and saw contributions decline in 2004. Illinois, home to the most expensive court race on record, is also considering a public funding measure and Washington State recently passed contribution limits, but has seen independent political action committees—supported by both sides—take a more active role in elections.

Committees of lawyers in several states are urging candidates not to answer questionnaires and to keep campaigns civil, with mixed success. Most Supreme Court candidates in Ohio, where campaigns have been less contentious since 2000, have signed pledges that require them to disavow any ads that question the integrity of other candidates.

The American Bar Association and a number of judges are urging states to do more, either by appointing judges or adopting public financing. "In a state like Ohio, we should have excellent, outstanding lawyers standing in line to be on the Supreme Court and we don't. We simply do not," says Chief Justice Thomas Moyers of the Ohio Supreme Court. "Some people who would make the very best judges don't want to go through the process. We have to do something." With interested parties on both sides, it won't be easy.