August, 16 2010, 09:38am EDT
For Immediate Release
Contact:
Charles Hall, Justice at Stake, 202-588-9454, chall@justiceatstake.org; or
Jeanine
Plant-Chirlin, Brennan Center for Justice,
at 212-998-6289 or jeanine.plant-chirlin@nyu.edu.
Is Justice for Sale?
Report Cites Exploding Costs, Role of Special Interests in State Court Elections; Justice Sandra Day O’Connor Warns of ‘Crisis of Confidence’
WASHINGTON
Spending on state Supreme Court elections has more than doubled
in the past decade, from $83.3 million in 1990-1999 to $206.9 million in
2000-2009, and deep-pocketed special interests play a dominant role in choosing
state jurists, according to a report released today.
For
more than a decade, partisans and special interests of all stripes have grown
more organized in their efforts to tilt the scales of justice their way. This
surge in spending-much of it funneled through secret channels-has
fundamentally transformed state Supreme Court elections.
The
report, "The New Politics of Judicial Elections, 2000-2009: Decade of
Change," is the first comprehensive study of spending in judicial
elections over the past decade. It was released today by the Justice at Stake
Campaign, the Brennan Center for Justice at NYU School of Law, and the National
Institute on Money in State Politics.
In
a foreword, Sandra Day O'Connor, retired U.S. Supreme Court Justice, warned
that elected judges are widely seen by the public as beholden to campaign benefactors
who sometimes spend millions to sway court races.
"This
crisis of confidence in the judiciary is real and growing," Justice
O'Connor warned. "Left unaddressed, the perception that justice is
for sale will undermine the rule of law that the courts are supposed to
uphold."
An
Executive Summary of the report is
available here. Among the report's key findings:
-
Spending
records were repeatedly shattered nationally and by state throughout the
decade. Candidates raised $206.9 million in 2000-2009, compared with $83.3
million in the 1990s. Twenty of the 22 states that hold at least some
competitive elections for judges had their most expensive election ever in the
last decade. -
A
select group of "super spenders" is outgunning small donors. In the
29 costliest elections in 10 states, the top five spenders each averaged
$473,000 per election to install judges of their choice, while all other contributors
averaged only $850 apiece. -
Judicial
elections are increasingly focusing not on competence and fairness, but on
promising results in the courtroom after election day. The tort reform wars
have driven this trend, with a half-dozen national business-funded groups, and
leaders of such corporate giants as Home Depot and AIG insurance, squaring off
against plaintiffs' attorneys and unions. -
A
TV spending arms race continues to escalate, creating a need for money that
only special interests can satisfy. In 2007-08, $26.6 million was spent on
Supreme Court TV ads, the costliest two-year ad cycle since tracking began in
2000. For the decade, supreme court candidates, special-interest groups and
political parties spent an estimated $93.6 million on TV ads. -
Special
interests are committed to dismantling spending limits, eliminating merit
selection of judges, and keeping campaign spending secret by assaulting decades
of disclosure laws. A campaign is underway to persuade federal courts to
downplay the Constitution's due process guarantee by reinterpreting the
he First Amendment to gut and weaken federal and state election laws. -
Many
judicial election spenders, including plaintiffs' lawyers and
corporations, have a passion for secrecy-using shell organizations to
keep their role out of the public eye. Such strategies are likely to continue
even after Citizens United, a Supreme Court decision that allowed
corporate and union spending in elections. This could make a true accounting of
special-interest spending impossible in 2010 and beyond.
"The
next decade will be a perilous time for fair courts," said Bert
Brandenburg, executive director of the Justice at Stake Campaign, a legal
reform group based in Washington. "For more than two centuries, Americans
have counted on judges to ignore political pressure. But the flood of
special-interest money is changing that. Without reforms, there is a real
risk of irreversible damage to public confidence in our courts."
According
to numerous polls taken throughout the decade, public concern is
widespread and bipartisan. Three in four Americans believe campaign cash
can affect courtroom decisions, and nearly half of state judges polled-46
percent-agree.
The
report is authored by James Sample, professor at Hofstra University Law
School, Adam Skaggs and Jonathan Blitzer of the Brennan Center for Justice,
Linda Casey of the National Institute on Money in State Politics. Charles Hall
of the Justice at Stake Campaign is the Editor.
"The
issues detailed in this report transcend America's partisan
divisions," said Sample, the report's lead author. "At
least when it comes to the courts, concern over the influence of green is not a
matter of red versus blue."
"This
explosion in spending fuels the growing public concern that judges will favor
the biggest spenders," said Skaggs, counsel at the Brennan Center.
"And with the recent U.S. Supreme Court ruling in Citizens United,
the amount of money flowing into judicial elections isn't likely to
diminish any time soon. That will mean increasing special interest pressures on
judges - and increasing public concern that justice is for sale."
One
positive cited in the report was a growing public desire to insulate courts
from special-interest money. States like Michigan, New Mexico, North Carolina,
West Virginia, and Wisconsin are responding to the new politics of judicial
elections with tools like public financing of judicial elections, consideration
of new judicial appointment/retention
election systems, and tougher ethics rules forcing judges to sit out cases
involving financial benefactors.
Justice
O'Connor, who has championed court reforms since retiring from the U.S.
Supreme Court in 2006, said in her letter introducing the report, "We all
have a stake in ensuring that courts remain fair, impartial, and independent.
If we fail to remember this, partisan infighting and hardball politics will
erode the essential function of our judicial system as a safe place where every
citizen stands equal before the law."
The Brennan Center for Justice is a nonpartisan law and policy institute. We strive to uphold the values of democracy. We stand for equal justice and the rule of law. We work to craft and advance reforms that will make American democracy work, for all.
(646) 292-8310LATEST NEWS
Supreme Court Urged to 'Rule Quickly' After Trump Immunity Arguments
"It'd be a travesty for justices to delay matters further," said one legal expert.
Apr 25, 2024
After about three hours of oral arguments Thursday on former President Donald Trump's immunity claims, legal experts and democracy defenders urged the U.S. Supreme Court to rule swiftly, with just over six months until the November election.
Trump—the presumptive Republican candidate to challenge Democratic President Joe Biden, despite his 88 felony charges in four ongoing criminal cases—is arguing that presidential immunity should protect him from federal charges for trying to overturn his 2020 loss to Biden, which culminated in the January 6, 2021 insurrection at the U.S. Capitol.
Justices across the ideological spectrum didn't seem inclined to support Trump's broad immunity claims—which critics have said "reflect a misreading of constitutional text and history as well as this court's precedent." However, Citizens for Responsibility and Ethics in Washington (CREW) shared examples of what it would mean if they did.
"Trump could sell pardons, ambassadorships, and other official benefits to his wealthy donors, members of his clubs, or cronies who helped him commit other crimes," CREW warned. "Trump could sell nuclear codes and government secrets to help pay back crippling debts."
"But this isn't just about what Donald Trump could do. It's really about how total immunity for the president would threaten our democratic system of checks and balances," the group continued. "The president could order the military to assassinate activists, political opponents, members of Congress, or even Supreme Court justices, so long as he claimed it related to some official act."
After warning that a president could also order the occupation or closure of the Capitol or high court to prevent actions against him, CREW concluded that "the Supreme Court never should have taken this appeal up in the first place. They should rule quickly and shut these ludicrous claims down for good."
The organization was far from alone in demanding a quick decision from the nation's highest court.
"In the name of accountability, the court must not delay its decision," the Brennan Center for Justice said Thursday evening. "The Supreme Court's time is up. It needs to let the prosecution move forward. The court decided Bush v. Gore in three days—it should act with similar alacrity in deciding Trump v. U.S."
In Bush v. Gore, the case that decided the 2000 election, the high court issued a related stay on December 9, heard oral arguments on December 11, and issued a final decision on December 12.
On Thursday, the arguments "got away from the central question: Is a former president immune from criminal prosecution if he tried to overthrow a presidential election, using private means and the power of his office to do so?" the Brennan Center noted. "The answer is simple: No."
"It is not an 'official act' to try to overthrow the peaceful transfer of power or the Constitution, even if you conspire with other government officials to do it or use the Oval Office phone," the center said. "Trump's attorney was pushing the court to come up with a sea change in the law. That's unnecessary and a delay tactic that will hurt the pursuit of justice in this case."
In a departure from previous claims, Trump's attorney, D. John Sauer, "appeared to agree with Special Counsel Jack Smith, who is leading the prosecution, that there are some allegations in the indictment that do not involve 'official acts' of the president," NBC Newsreported, noting questions from liberal Justice Elena Kagan and conservative Justice Amy Coney Barrett, a Trump appointee.
Barrett summarized various allegations from the indictment and in three cases—involving dishonest election claims, false allegations of fraud, and fake electors—Sauer conceded that Trump's alleged conduct sounded private, suggesting that a more narrow case against the ex-president that excluded any potential official acts could proceed.
Due to Trump attorney's concessions in Supreme Court oral argument, there's now a very clear path for DOJ's case to go forward.\n\nIt'd be a travesty for Justices to delay matters further.\n\nJustice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.\u2b07\ufe0f— (@)
According to NBC:
Matthew Seligman, a lawyer and a fellow at the Constitutional Law Center at Stanford Law School who filed a brief backing prosecutors, said Sauer's concessions highlight that Trump is "not immune for the vast majority of the conduct alleged in the indictment."
Ultimately, he said, the case will go to trial "absent some external intervention—like Trump ordering [the Justice Department] to drop the charges" after having won the election.
At the same time, Sauer's backtracking might have little consequence from an electoral perspective. Further delay in a trial, which Sauer is close to achieving, is a form of victory in itself.
Slate's Mark Joseph Stern pointed out that when Barrett similarly questioned Michael Dreeben, the U.S. Department of Justice lawyer arguing the case for Smith, it seemed like they "were trying to work out some compromise wherein the trial court could distinguish between official and unofficial acts, then instruct the jury not to impose criminal liability on the former."
"It was fascinating to watch Barrett nodding along as Dreeben pitched a compromise that would largely preserve Smith's January 6 prosecution but limit what the jury could hear, or at least consider," Stern added. "That, though, would take months to suss out in the trial court. More delays!"
Stern and other experts signaled that the decision likely comes down to Barrett and Chief Justice John Roberts, with the three liberals seemingly supporting the prosecution of Trump and the other four conservatives suggesting it is unconstitutional.
People for the American Way president Svante Myrick said in a statement that "today's argument brought both good and bad news. It was chilling to hear Donald Trump's lawyer say that staging a military coup could be considered part of a president's official duties."
"Thankfully, the majority of the court, including conservative justices, did not seem to buy that very broad Trump argument that a former president is absolutely immune from prosecution under any circumstances," Myrick added. "On the other hand, it's not clear that there is a majority on this court that will quickly reject the immunity arguments and let the case go forward in time for a trial before the election. That's a huge concern."
Trump was not at the Supreme Court on Thursday; he was at his trial in New York, where he faces 34 counts for allegedly falsifying business records related to hush money payments to cover up sex scandals during the 2016 election cycle. The are two other cases: a federal one for mishandling classified material and another in Georgia for interfering with the last presidential contest.
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Twenty more demonstrators were arrested Thursday, the second day of Earth Week protests targeting Citigroup's Manhattan headquarters in what organizers called "the beginning of a wave of direct actions to take place over the summer targeting big banks for creating climate chaos that is killing our communities and our planet."
Protest organizers—who include Climate Defenders, New York Communities for Change, Planet over Profit, and Stop the Money Pipeline—said 53 activists were arrested over two days of demonstrations, which included blocking the entrance to Citigroup's headquarters, to "demand that the bank stop funding fossil fuels."
Organizers said this week's demonstrations "were just the beginning" of what they're calling a "Summer of Heat" targeting big banks for their role in the climate emergency and for "polluting our land, air, and water, and threatening the health of children, families, and our planet." Citigroup is the world's second-largest fossil fuel financier.
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Jonathan Westin, executive director of Climate Defenders, asserted that "Citigroup's racist funding of oil, coal, and gas is creating climate chaos that's devastating communities of color across the country."
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"We're going to keep organizing and taking direct action until Citi listens to us," he vowed.
Stop the Money Pipeline co-director Alec Connon said: "To have any chance of reigning in the climate crisis, we must stop investing in fossil fuel expansion. Yet, Citibank is pumping billions of dollars into new coal, oil, and gas projects."
"We're here to make it clear: If they're going to fund the companies disrupting our climate and our lives, we're going to disrupt their business," Connon added.
Activists have repeatedly targeted Citigroup in recent years as the megabank has pumped more than $300 billion into fossil fuel investments around the world since the Paris climate agreement.
According to the protest organizers:
Citi has provided $668 million in funding to Formosa Plastics between 2001-2021, which is trying to build a $9.4 billion plastics facility in a majority Black community in the heart of Cancer Alley in Louisiana.
Citigroup is also one of the biggest funders of state-run oil and gas companies in the Amazon basin, pumping in over $40 billion between 2016-2020, and a major backer of Petroperú, which has been involved in oil spills and Indigenous rights violations.
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A Biden administration spokesperson once again brushed off calls for an independent investigation into how hundreds of Palestinians found in mass graves near Gaza hospitals died when asked Thursday about new reports that many of the victims were tortured, summarily executed—and in some cases, buried alive by Israeli invaders.
During a Thursday U.S. State Department press conference in Washington, D.C., a reporter noted Gaza officials' claim that mass grave victims "including children were tortured before being killed" and that "some even showed signs of being buried alive, along with other crimes against humanity."
"What's wrong with an independent, scientific, forensic investigation?"
Noting calls by Palestinian officials and United Nations High Commissioner for Human Rights Volker Türk for an independent probe into mass graves, the reporter said that "this administration repeatedly said that it asks... the Israeli government to investigate itself."
"How does it ever make sense that the United States asks the accused party to examine itself and provide reports that you have previously said that you actually trust?" the reporter asked State Department Principal Deputy Spokesperson Vedant Patel. "What's wrong with an independent, scientific, forensic investigation?"
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Thursday's exchange followed a similar back-and-forth on Tuesday between Patel and Said Arikat, a journalist for the Jerusalem-based
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Gaza Civil Defense official Mohammed Mughier told reporters that "we need forensic examination" to definitively determine the causes of death for the 20 people believed to have been buried alive.
Previous reporting on the mass graves quoted rescue workers who said they found people who were apparently executed while their hands were bound, with some victims missing heads, skin, and internal organs.
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