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FOR IMMEDIATE RELEASE
August 16, 2010
10:38 AM

CONTACT: Brennan Center for Justice, Justice at Stake, Institute on Money in State Politics

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 - August 16 - 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."

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The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to redistricting reform, from access to the courts to presidential power in the fight against terrorism.


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