Nasty Judicial Races Renew Complaints
By John Gramlich, Staff Writer
The race for the top seat on the Michigan Supreme Court - decided by voters Nov. 4 - took a sharp turn to the negative in the weeks leading up to Election Day.
Supporters of Republican Cliff Taylor, the incumbent chief justice, flooded the airwaves with TV ads portraying his Democratic challenger, longtime trial judge Diane Hathaway, as soft on serious criminals. "Probation for a terrorist sympathizer? We're at war with terrorists," a pro-Taylor ad said.
Hathaway backers launched ads painting Taylor as a pawn for big business. "Call Clifford Taylor and thank him for protecting wealthy corporations from suits by women who are sexually harassed and raped at work," a pro-Hathaway ad said.
Michigan's bruising contest - which Hathaway won, 49 percent to 40 - was the " dirtiest " of the 26 high court races in 15 states this election cycle, according to the Justice At Stake Campaign, a nonpartisan judicial watchdog group in Washington, D.C. Bert Brandenburg, the group's executive director, called the race an "orgy of negativity," with costly, misleading attacks fired from third-party interest groups on both sides.
But other judicial races also drew criticism for their cost and negativity. Bare-knuckle races in states including Alabama, Mississippi, Wisconsin and West Virginia have renewed calls from advocacy groups, lawyers and others in the legal community for structural changes to the way judicial elections work. All or some judges are elected in 39 states, though the rules vary widely by state and by the office being sought.
Critics, ranging from grassroots organizations to former Supreme Court justice Sandra Day O'Connor, say judicial races in states with head-to-head elections have become so polarizing - and so suffused with campaign contributions from wealthy outside interest groups - that they blur the line between politics and the law. The races, they say, undermine public faith in the courts by raising questions about whether candidates are beholden to the interests that helped finance their campaigns.
Few states have contribution limits for third-party groups in judicial races. High court elections in several states, including Alabama, Georgia, Kentucky, Oregon and Washington state, have shattered spending records in recent years - usually with the help of outside money.
Outside interest groups accounted for nearly three-fourths of all spending on TV ads in Michigan's high court race through Oct. 30, according to a report issued by the nonpartisan Brennan Center for Justice at the New York University School of Law. The Michigan Chamber of Commerce spent nearly $1.1 million in a two-week period ahead of the election to support Taylor, vastly outspending Hathaway and her chief backer, the Democratic State Central Committee.
In Wisconsin, which held a general election for a state Supreme Court seat in April, third-party groups accounted for 91 percent of all spending on TV ads, according to the Brennan report.
Whether campaign contributions from outside interests unfairly influence the administration of justice has long been debated - and will be examined by the U.S. Supreme Court early next year. The court agreed last month to decide whether a justice on West Virginia's highest court is required by the U.S. Constitution to recuse himself from a case in which the financial interests of his biggest campaign supporter are at stake.
The justice, Brent Benjamin of the West Virginia Supreme Court of Appeals, cast the deciding vote in a 3-2 ruling that spared a coal company, Massey Energy, from paying a $50 million settlement. Massey's chief executive, Don Blankenship, contributed $3 million to Benjamin's campaign for the court in 2004; Blankenship's money amounted to more than 60 percent of all Benjamin's contributions.
"It's an egregious example of what is becoming … (the) norm, which is that massive contributors or financial supporters for judicial candidates are now appearing in litigation before the very judges that they supported," said James Sample, an attorney with the Brennan Center. The center filed a brief urging the Supreme Court to take on the West Virginia case, Caperton v. Massey .
While there is widespread agreement that judicial elections are flawed, fierce debate persists over how judges should be chosen. O'Connor and others have pushed for wider use of the " Missouri plan ," a model first adopted in parts of the Show Me State in 1940 and since adopted in some form by dozens of other states.
Under the plan, also known as the "merit selection" system, an independent citizens' commission names a list of potential judges, one of whom is chosen by the governor and serves for an initial period of a year or more. Judges are later kept or ousted by voters in "retention elections" in which incumbents run unopposed.
Supporters of the system say it limits the role of outside interests and ensures that only qualified candidates will become judges. They note that few judges are voted off the bench in retention elections.
But the system recently has come under fire, including in the state where it began.
Missouri Gov. Matt Blunt (R) and others in the state say the citizen commission that chooses high court nominees works in secret and is stacked with liberal trial lawyers, and they say voters are unfairly cut out of the selection process. Blunt opposed a local ballot question in Missouri's Greene County last month that sought to replace partisan elections there with a form of the Missouri plan.
The measure passed, as did a similar measure in Johnson County in neighboring Kansas. Alabama voters also approved a statewide proposal to amend the state constitution and allow Shelby County to choose judges using a merit selection system.
In New York, which also uses a form of the Missouri plan, Gov. David Paterson (D) and Attorney General Andrew Cuomo (D) last week assailed the list of nominees a state panel provided to Paterson to fill a vacancy for chief judge of the Court of Appeals, the state's highest court. Paterson and Cuomo expressed outrage that none of the seven candidates presented to the governor was a woman.
Florida Gov. Charlie Crist (R) last week also criticized a list of nominees provided to him by a state commission, complaining that no black candidates were included in the six-person group.
While merit selection systems remain controversial, some states are experimenting with other strategies to reform judicial elections. North Carolina in 2002 became the first state to adopt public financing for judicial races, and 11 of 12 candidates this year opted into the system. That helped cut the role of outside contributors, according to Justice At Stake.
In Washington state, a retired judge this year formed a bipartisan committee of citizens to keep watch over judicial elections after the negativity and costs of a 2006 race for the state Supreme Court caused alarm. According to the judge, William Baker, the Washington Committee for Ethical Judicial Campaigns elicited pledges from 15 of 16 judicial candidates this year to run ethical campaigns, and was forced to act on only a single complaint.