The New Yorker
By Jeffrey Toobin
August 14, 2012
Campaign-finance discussions tend to focus on a) the Presidential race and b) the Supreme Court’s Citizens United decision, but the biggest outrage concerning money in politics has little to do with either. It involves elections that rarely receive the attention they deserve: those for judgeships.
Thirty-nine states elect judges to their highest courts. (Fortunately, New York does not, though many lower-court judges in the state stand for election.) State courts decide about ninety-five per cent of the cases in American courts. The federal courts, where the judges are nominated by the President and confirmed by the Senate, hear only about five per cent, though those appointments get far more attention. Criminal prosecutions, civil lawsuits, child-custody matters, personal injuries—almost all are decided in state courts, under rules established by each state supreme court.
For many years, these contests were rather sleepy affairs, followed mostly by lawyers (and not many of them). The big changes began in the nineteen-eighties, and the partisan lines were clear. Plaintiffs’ lawyers in personal-injury cases funded Democratic candidates for judgeships; defense lawyers in these cases—especially those representing insurance companies and large corporations—supported Republicans. For a time, the battle was something of standoff, but Republicans gained the upper hand in the nineties, especially in the South, where they were making big gains across the board. (Karl Rove first became famous because of his victories in Texas judicial elections.)
A new report, issued yesterday by the left-leaning Center for American Progress, shows that the race for control of state judiciaries has become a rout. The report, entitled “Big Business Taking over State Supreme Courts,” found that,
Fueled by money from corporate interests and lobbyists, spending on judicial campaigns has exploded in the last two decades. In 1990 candidates for state supreme courts only raised around $3 million, but by the mid-nineties, campaigns were raking in more than five times that amount, fueled by extremely costly races in Alabama and Texas. The 2000 race saw high-court candidates raise more than $45 million.
In the subsequent decade, the numbers have only grown bigger. As the report notes, “more than 90 percent of special interest TV ads in 2006 were paid for by pro-business interest groups. Conservative groups spent $8.9 million in high court elections in 2010, compared to just $2.5 million from progressive groups.”
The numbers are necessarily incomplete because judicial campaigns in many states are lightly regulated, and it’s often been difficult to identify the real sources of contributions—even before the Supreme Court decided Citizens United, in 2010. Citizens United will, in a small way, make it even worse, but the situation has been dismal for years. Unregulated Super PACs, some funded by corporations, are plowing money into judicial elections. (As the report notes, North Carolina is the one state in the union with a robust public-financing system for judicial elections; this year, a pro-corporate Super PAC is upsetting the balance by supporting a favored judge.)
The problem of money in judicial elections has a straightforward solution: appointive state judiciaries. The systems vary in states without supreme-court elections. Some, like New Jersey, give a great deal of power to the governor; the “Missouri plan,” which has also been adopted by several other states, uses non-partisan commissions to present finalists to the governor; other states, like California, allow the governor to choose supreme-court justices, who are then subject to occasional retention elections by the voters. Any of these are preferable to the grotesque spectacles that pass for judicial elections in states like Ohio, Michigan, Alabama, and (of course) Texas.
In recent years, the leader of the fight for an appointive judiciary has been Sandra Day O’Connor, who took on the issue after her retirement from the Supreme Court, in 2006. As she wrote not long ago, “When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.” But it’s clear now that in many states you should worry—a lot.