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Legislators and special interests are making sure we get the state court judges they want

By L. Jay Jackson

July 1, 2013, 10:00 am CDT

Not content that Iowa Supreme Court justices have been sufficiently chastised for legalizing gay marriage, a group of conservative state legislators tried to cut the salaries of the four remaining justices who were part of the 2009 decision.

In April the lawmakers filed an amendment to slash their annual pay from $163,200 to $25,000. Voters had already removed the other three justices who voted for same-sex marriage in a 2010 retention election after activists campaigned against them.

Republican Rep. Dwayne Alons says he submitted the salary cut amendment because the court’s decision to legalize gay marriage was an inappropriate “shift of power” and because the judges and attorney general were “acting as an oligarchy” when they made and implemented a decision that should have been left to the legislature. Alons and his fellow conservatives said they proposed the cut to make the court’s salaries on par with those of the legislature.

Although Iowa legislators dropped the pay cut amendment in May, experts nevertheless expect more such efforts. They say these measures reflect a broad trend of attacks on impartial arbiters who vote in ways that anger certain groups. It is part of a national war on state courts fought mostly by legislators and special interests who are targeting judges with negative campaign ads, and by legislators attempting to pack or unpack higher courts with like-minded jurists. Judges are battling from the bench, often with their hands tied by ethics rules that require them to take the high road, despite low blows. Legal observers say the judiciary is under attack as never before, jeopardizing the American tradition of impartial jurisprudence.

“State courts have become a new battleground,” says Alicia Bannon, counsel for the Democracy Program at the Brennan Center for Justice, a nonpartisan law and policy institute at the New York University School of Law. “These assaults on judicial independence hurt public confidence in the judicial branch. You want a judge to be interpreting the case in front of you. You don’t want them to worry about being retaliated against for unpopular decisions.”

There were more impeachment attempts against state judges in 2011 than at any other time in history, according to Gavel to Gavel, a newsletter of the National Center for State Courts, based in Williamsburg, Va. The newsletter reports that 14 bills in seven states sought the impeachment of numerous judges, including the entire New Hampshire Superior Court. In all but two cases the measures sought to punish judges whose opinions displeased members of the legislature, the newsletter says.

Former ABA President Stephen Zack points out that this trend has been building for some time, but people just weren’t focused on it. Zack, who is administrative partner in the Miami office of Boies, Schiller & Flexner, notes that even the architects of the Constitution wanted to ensure that the “power of the purse” wasn’t used by the legislature to intimidate the judiciary. Zack says Alexander Hamilton recognized there would always be tension between the legislature and constitutional mandates, which is why he advocated for an independent judiciary.

“The legislature would very much like legislative supremacy, but our Constitution requires judicial supremacy,” Zack says. “It’s an inherent conflict that makes our democracy work. Our judiciary tells the legislature when they can’t do what they want to do. As a result [of the conflict] we have legislators, instead of deferring to the judiciary as a co-equal branch of government, treating the judiciary like an agency—as if it were a library or another bridge project—and that’s not what it is.”

FLOUTING THE CONSTITUTION

The impact of the war on state courts affects not only those on the bench, but those who stand before it. Legislatures have cut court funding, which has led to large backlogs of cases. In addition to affecting civilian plaintiffs, Zack says, this trend disregards the importance that a functioning court system has for a healthy business community.

“There are people who have used the economic problems to do what they want to do—and that’s not fully fund the court,” Zack says. “It’s not an option to not fund the courts. There is a lot of subtle negotiation going on. [When the legislature says,] ‘We want the court to be more responsive,’ it means they want them to do what they want them to do. But the court is bound by what the Constitution wants them to do.”

A recent survey by the Brennan Center for Justice shows that public confidence in an independent judiciary is waning. Its 2010 report The New Politics of Judicial Elections found that three out of four Americans believe campaign cash can affect court-room decisions.

The U.S. is the only country that elects a significant number of its judges, with voters electing some or all of their judges in 39 states. According to the Harvard Law Review, the only other nations that elect even small numbers of judges are Switzerland, Japan and France, and these countries narrowly limit the scope of the elections. In addition, an estimated 95 percent of legal disputes are settled in state courts, according to the Center for American Progress, a Washington, D.C.-based progressive policy group.

Bert Brandenburg, executive director of Justice at Stake, a D.C. group supporting fair and impartial courts, says the process has accelerated, pushed along by an “outrage industry” whose livelihood depends on attacking the courts. From pundits to fundraisers to politicians, powerful actors in a 24-hour news cycle mount recurring attacks on judges and their decisions, putting the bench on the defensive. “The judiciary has to be ready for a more or less permanent challenge to its legitimacy,” Brandenburg says. Some of the more strident attempts to alter the courts have been launched by special interest groups injecting money into state campaigns. Retired Montana Supreme Court Justice James C. Nelson, who has been a vocal critic of outside funding in judicial races, offers a blunt assessment.

“Corporate America [tries] to control all three branches of government. … The only thing standing between corporate America and the ordinary citizens is the court system,” Nelson says. “These super PACs, big money organizations, these dark organizations—the corporations—they understand that. They get a law passed the way they want to, then some plaintiff files a lawsuit and the whole thing goes down the toilet.”

Nelson says to ensure this doesn’t happen, big business is aggressively funneling funds to try and “buy” favorable legal outcomes. Historically, trial lawyers’ organizations and labor unions have contributed lavishly to help elect pro-plaintiff judges. But big business took note, and the new levels of spending on judicial campaigns have dwarfed anything previously seen.

A recent example involved the effort by a Virginia-based coal company to wrest a mine away from a competitor. In 2004, A.T. Massey Coal Co. and its CEO, Don L. Blankenship, raised $3 million on behalf of a West Virginia lawyer who was seeking to gain a seat on the state Supreme Court of Appeals. Massey’s rival coal business asked the justice to disqualify himself. He not only refused but twice cast the third and deciding vote to reverse a judgment against Massey. (See “Caperton’s Coal,” ABA Journal, February 2009.)

In 2009, the U.S. Supreme Court held in Caperton v. A.T. Massey Coal Co. that the due process clause of the 14th Amendment requires that a judge recuse himself not only when actual bias has been demonstrated or when the judge has an economic interest in the outcome of the case, but also when “extreme facts” create a “probability of bias.”

But now corporate America and special interest groups are attempting to sidestep Caperton and utilize another Supreme Court decision, Citizens United v. Federal Election Commission, to circumvent disclosure rules and limits on campaign contributions.

“If someone spends $2 million on negative advertising to trash the opposing candidate and puts you in office, it is pure fantasy that it isn’t going to influence votes,” Nelson says. “If it didn’t influence votes, they wouldn’t be doing it.”

Traditionally, state judicial races have been low-key affairs. Now multimillion-dollar races take place with judicial candidates most voters couldn’t name. The Center for American Progress reports that the six states that have seen the most money in judicial elections—Alabama, Illinois, Michigan, Ohio, Pennsylvania and Texas—have supreme courts dominated by pro-corporate judges. The high courts in these states ruled in favor of corporations an average of 71 percent of the time, the organization reports.

“More attention needs to be paid to this issue,” Bannon says. “The public needs to be confident judges are making decisions based on the law and not based on fear of retaliation. Frankly, there needs to be more outrage about some of the measures put forward in recent years.”

But the concern has been building among lawyers’ groups and the judiciary. Retired Supreme Court Justice Sandra Day O’Connor is among the jurists who have sought to draw public attention to the issue. “The crisis of confidence in the impartiality of the judiciary is real and growing,” Justice O’Connor wrote in 2010. “Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”

SUNSHINE STATE JUDGES FEELING THE HEAT

Ever since the hanging chad, Florida has been a judicial flashpoint. In the past few years there have been a series of efforts to attack the independence of the judiciary on nearly every level. These include attempts to weaken the merit system, targeting judges in retention elections, and bills to limit judicial immunity in the state’s disciplinary process. Florida legislators have also tried to “pack” the supreme court by giving the governor the power to appoint three additional seats.

Perhaps the most audacious effort took place in 2012, when displeased conservatives in the state targeted three supreme court justices for what they described as extensive “judicial activism,” including a 2003 murder conviction reversal. Florida Supreme Court Justice Barbara Pariente and two of her colleagues were subjected to negative ads and a vigorous campaign directed against them during their merit retention election. Advocacy groups decried the partisan campaign as an attempt to hijack the court and rallied behind the three justices, who were able to retain their seats with an ample majority.

But Pariente says the lessons from that campaign are dire. “The very worst reaction would be to underestimate the threat and remain complacent because it is unquestionable that the pattern of judicial elections over the past decade, and the influence of money on those elections, has now posed a threat to merit retention elections,” she says.

Retention elections are just one area under attack. Legislators in various states are also tinkering with the number of justices on the higher courts, generally attempting to add more. In the past, efforts to expand judges within the state court system were aimed at alleviating excessive caseloads, primarily in states that didn’t have an intermediate court. Now the goal is to stack the deck for the benefit of a particular political party.

Most efforts target lower and intermediate courts, since many states require a constitutional amendment to change the makeup of their supreme courts. In 2009, Indiana legislators tried to end merit selection at the trial court level in one of the few counties where it existed in exchange for an expansion of the intermediate Court of Appeals by three judges, to be picked by then-Gov. Mitch Daniels. But Daniels vetoed the bill, admonishing its supporters and praising the merit selection process.

Similarly, in 2012 the Arizona Senate considered two bills that would have eliminated merit selection in the state and would have reduced the Court of Appeals from 22 members to six. Supporters cited this as a way to put a check and balance on the judiciary. Both bills failed.

Orchestrators of the court-tampering plans have been unabashed in their goals to assert control over the judiciary process. Take the failed 2011 bid by Republican legislators in Florida to split the state supreme court into civil and criminal divisions. The effort would have removed the most senior justices, who were appointed by a Democratic governor, and transferred them to the criminal division, which would have allowed the Republican governor to hand-pick the civil court.

“The speaker of the House said his purpose was anger over civil decisions by the supreme court over the prior six months,” says William Raftery, who tracks legislation as an analyst with the National Center for State Courts. “One of the purposes behind this is to send a message to the supreme court of displeasure over a decision,” Raftery says. It is an “attempt to either punish a court for prior decisions or dissuade them from rendering certain decisions in the future. The purpose seems less toward passage [of certain legislation] as toward sending a message. … It’s a message to the entire judiciary as a whole.”

But as the public becomes increasingly aware of such machinations, there has been pushback against public officials and private interests interfering with judicial decision-making. “Typically, the public has rejected efforts to weaken the independence of state courts, but unfortunately that doesn’t always play out in the legislative sphere,” Bannon notes. “Even when these efforts aren’t successful, they still send a message that there will be consequences for unpopular decisions.”

Brandenburg says that “Americans are very suspicious of tampering with the courts and they’re prone to see through it. Florida, Missouri and Arizona saw efforts to politicize election systems through ballot measures, and in each case, the public rejected the measures.”

Advocates say invigorated merit selection systems, with judges held publicly accountable in retention elections, offer a means to depoliticize the process. Merit selection attempts to limit the role of politics in choosing judges by providing for a bipartisan nominating commission to carefully vet qualifications and submit candidates for approval.

But conservatives in a number of states are chipping away at the system, with efforts favoring direct appointments by the governor.

This year, Kansas successfully removed merit selection from its Court of Appeals. Tennessee will have a constitutional amendment on its ballot next year removing a merit selection component. Similar measures have passed the Oklahoma Senate, while Arizona is trying to increase the number of nominees the merit committee must send the governor. And in Florida, some in the legislature are trying to give the governor control over who sits on the judicial nominating commission.

“Bottom line, we have to look at the way we are selecting our judges—should it be appointments, elections or some sort of hybrid. That is the debate that is occurring—at least in the legal community—now,” says Oliver Diaz, former presiding justice of the Mississippi Supreme Court.

Diaz was targeted twice for removal by the U.S. Chamber of Commerce and other business interest groups during his judicial tenure because of a perceived pro-plaintiff stance. During the first unsuccessful attempt to unseat him in 2000, Diaz says more than $1 million of outside cash flooded into a contest where each candidate had spent less than $25,000. In 2008, special interest groups prevailed and Diaz was defeated by a candidate with corporate backing and a stream of misleading third-party ads.

“There was a study that showed more people can name the Three Stooges than three justices on the U.S. Supreme Court,” Diaz says. “When you get negative ads directed at a judge, it defines that judge. And it could be the only thing you know about that judge.”

‘THE STATE OF AFFAIRS NOW’

When asked about the role outside money plays in local judicial races, Justin Hakes, communications director at the U.S. Chamber Institute for Legal Reform, says, “It’s our policy not to make such contributions.”

Diaz’s story formed the basis for John Grisham’s bestselling novel The Appeal, and he was profiled in the 2011 documentary Hot Coffee, which explores attempts by big business to limit the public’s access to the judicial system. Now Diaz’s struggle will be the subject of a Hollywood film, scheduled to begin shooting this winter. He hopes the media attention will bring publicity to an issue that continues to fly under the radar.

“I am disappointed in the state of judicial elections generally and the influence that is being seen on particular elections,” Diaz says. “It affects the quality of candidates we’re seeing. Everyone knows there’s the possibility that there could be a massive multimillion-dollar ad campaign run against you. It’s just the state of affairs now and candidates take that into consideration before they decide to run.”

Justice Pariente says that “we should make every effort to take the pressure off of justices and judges, especially in merit retention states, to have to resort to fundraising.”

To avoid the pitfalls of accepting special interest donations, some states have passed public financing rules allowing judges to receive money from an election fund—as long as they swear off outside cash. New Mexico, North Carolina, West Virginia and Wisconsin all adopted public financing rules, with mixed success. In Wisconsin, opponents successfully repealed public financing in 2011, and a similar program is in danger of being axed this year in North Carolina.

While public financing remains controversial, stronger recusal requirements have been promoted as a commonsense solution to weed out judges with ties to special interest cash.

“Recusal is a new frontier for addressing the flow of money to the bench,” Brandenburg says.

Georgia and Tennessee are often cited for offering good models for judicial disqualification. Their recusal standards take more into consideration than merely the amount of money donated to a campaign. The rules look at a number of factors, including whether a judge’s impartiality has been compromised due to contributions or other support, the level of support or contributions, the contributor’s relationship to all parties involved, and the timing of the contribution or support. Most important, the two states require a second judge to make the determination of disqualification, rather than leaving the decision to the sole discretion of the challenged judge.

In Michigan, the supreme court adopted a rule requiring justices to respond in writing to a recusal request. If the justice decides not to abstain, the party making the request can appeal that decision to the entire court.

On the other side of the spectrum, a 2010 Wisconsin Supreme Court decision determined that campaign donations or independent expenditures by a litigant or an attorney cannot be the sole basis for recusal. In an effort to combat such counterintuitive and potentially self-serving declarations, the Center for American Progress has urged state legislatures to pass laws mandating recusal under certain circumstances, rather than waiting for judges to police themselves.

In addition to measures put in place at the rule-making level, Pariente sees voter education as key to any efforts to counter legislative bullying and the influence of special interest groups. She sees the need for a “concerted effort” to run public education campaigns explaining the purpose of merit retention and the dangers of targeting judges based on philosophical or political differences. “The systematic education of our citizens is the No. 1 priority,” she says.

As part of this, nonpartisan voter guides and judicial performance evaluations could offer information, and voter turnout efforts would also serve a counteractive purpose. “If more ordinary voters voted in judicial elections, it’s less likely a special interest group can tip an election by turning out their base,” Brandenburg points out.

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L. Jay Jackson is a lawyer and a freelance journalist in Chicago.