Is Justice for Sale?

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."