Argument: Elected justices are corruptly influenced by campaign funders

Issue Report: Election of judges


Cody Carliss. “Electing judges – with cash. Merit, not money, should sway judicial elections.” Christian Science Monitor. January 30, 2008: “Mr. Grisham may have written his latest book, “The Appeal,” on the sale of justice, but the fierce nature of judicial elections should give all of us pause to wonder whether – or how often – justice merely goes to the highest bidder. His descriptions of high-spending judicial campaigns are rooted in fact.

The real-life analogy to Grisham’s book: a case in my home state of West Virginia. There, in 2002, Massey Energy, the largest coal producer in Appalachia, lost a $50 million verdict in the local courts. As in Grisham’s fiction, the five-member Supreme Court of Appeals of West Virginia was severely divided. And before Massey’s appeal reached the state’s highest court, the 2004 judicial election would pit a “liberal” incumbent against an unknown corporate lawyer who had never argued a case before the court.

And as in Grisham’s book, the campaign was high-cost and nasty. Both sides spent more than $5 million. Massey’s CEO alone spent more than $3 million out of pocket to attack the incumbent. The Brennan Center for Justice at New York University ranked it one of the nation’s most vicious and costly judicial elections. When all the attacks and counterattacks were over, the unknown attorney defeated the sitting justice.

The Massey appeal reached the West Virginia Supreme Court after the election. The newly elected justice who benefited from the Massey contributions refused to recuse himself. Another justice who had lashed out at Massey’s contributions also refused and a 3-to-2 vote along ideological lines reversed the lower court decision. The matter seemed settled until photos recently surfaced showing another state Supreme Court justice vacationing on the French Riviera with the Massey CEO while the appeal was pending.

The West Virginia Supreme Court has voted to rehear the appeal, but the damage to the integrity of the state’s judiciary has been done.

Thirty-eight states elect their state judges. Judicial elections were less divisive until a 2002 US Supreme Court ruling allowed judicial candidates to speak more openly about political issues on the campaign trail.

Now that a judge can be more open about his or her beliefs, money is flowing into judicial campaigns as never before. The 2006 judicial campaign season was the highest spending on record, according to Justice at Stake, a nonpartisan monitoring group. That year, business interests gave $15.3 million to judicial candidates while attorneys kicked in another $7.4 million. Third-party interest advertising accounted for another $8.5 million. One can only imagine that 2008 will be another record year.

So what can we do to end the money exchange in state judicial elections? Simply put, it’s time to end judicial elections on the state’s highest courts.”

Mario Ritter. “Money, Influence and the Election of Judges”. Voice of America. June 11, 2009: “In many states, elections for judges are increasingly competitive. The Justice at Stake Campaign says candidates raised one hundred sixty-eight million dollars between two thousand and two thousand seven. The group says that was double the amount raised in the nineteen nineties.

Critics say the situation threatens the fairness of state courts. It may create the appearance that judges are selling their influence.

The Supreme Court ruled on a vote by a judge elected to West Virginia’s high court five years ago. Justice Brent Benjamin – now chief justice – voted to overturn a fifty million dollar judgment against the Massey Coal Company.

Massey’s chairman had spent $3 million to help elect him to the West Virginia Supreme Court of Appeals. That was after the company lost a jury trial over a business dispute.

Justice Benjamin refused to remove himself from Massey’s appeal and cast the deciding vote. The reason he gave for not recusing himself was that there was no financial gain for him in making his decision. The donations, however, represented about sixty percent of all his campaign money.

The United States Supreme Court found that the ‘extreme facts’ of the case raised the probability of bias to an unconstitutional level. Not every campaign gift requires a judge’s recusal, the court said, ‘but this is an exceptional case.'”

Susan Finch. “Money Talks, Says Study of Justices”. The Times-Picayune. February 1, 2008: “Louisiana Supreme Court should change its rules to require justices to recuse themselves from deciding cases that involve litigants or lawyers who have given them campaign contributions, a Tulane Law School professor has concluded after he and another scholar studied voting patterns on the state’s high court over 14 years. In 181 civil cases between 1992 and 2006, the nine justices have been significantly influenced by campaign donations in making their decisions, says the study, which is soon to be published in the Tulane Law Review.

The study, based on a statistical analysis of how each justice voted on cases involving their campaign donors, was conducted by Tulane comparative law professor Vernon Palmer and Loyola assistant professor of economics John Levendis.

“What we show in this study is there is an unusually high correlation between campaign contributions and decisions in favor of contributors, with very little possibility of being in error because it’s done statistically,” Palmer said.

Through a spokeswoman, the state high court declined to comment on the report, “The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on Judicial Function.”

The study concluded that statistically speaking, campaign donors have a favored status among litigants appearing before the court, a sign it says indicates that campaign cash may have eroded the qualities most needed in such a court: independence, impartiality and adherence to the rule of law.

[…] “The marked statistical shift favoring the (largest) contributor irrespective of being plaintiff or defendant strongly indicates that it is the donation, not the underlying philosophical orientation, that accounts for the voting outcome,” the report said.

“Follow Iowa’s lead: Stop electing judges”. DesMoines Register. June 10, 2009: “the public – not to mention parties in such cases who haven’t given money to the judge – would have reasonable doubts about the judge’s impartiality. The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

[…] The West Virginia case is a blatant example of how this trend seriously undermines public confidence in the courts. The president of a coal company, who had a case headed toward the state supreme court, maxed out at the $1,000 limit in backing candidate Brent Benjamin, and then gave $3 million more to an outside group working to support Benjamin. That was more than the total spent by all other Benjamin supporters and three times the amount spent by Benjamin himself.

Benjamin was elected to the court, yet when the coal company’s appeal arrived, he refused the plea from the opposing party to remove himself from the case. More than just an obvious ethical conflict, the U.S. Supreme Court said, this was a violation of the due-process clause of the Constitution. “The facts now before us are extreme by any measure,” Justice Anthony Kennedy wrote for the court.

Although a line was clearly crossed in this case, the four justices in the minority are right that the majority decision leaves lower-court judges to wonder where exactly to draw that line. That should not be a problem, however, if judges would apply the rule that what looks to a reasonable person to be a conflict is, in fact, a conflict.

Better yet, states should eliminate judicial elections altogether, as Iowa wisely chose to do more than 40 years ago.

John Baer. “Time to end electing judges”. Philadelphia Daily News. May 20, 2009: “You must have heard about the local judges in Wilkes-Barre busted for taking bribes in exchange for putting kids in juvey jails. Or the state judge from Erie just sentenced to prison for insurance fraud. Or the Philly judge who, while running for a state court last election, also was running a real-estate business out of his chambers. All elected by the voters.First of all, it’s a crapshoot. Nobody’s heard of these nominated candidates. So ballot position, geography (the ballot lists where candidates are from) and gender usually determine outcome. In other words, luck.”