Justice for sale? Cash pours into campaigns

Money, negative ads may determine bench in Ohio and Michigan, among other states.

Special-interest groups - and their campaign cash - are changing the nature of judicial elections in America.

Rather than earnest meditations on the ability and experience of prospective jurists, election campaigns for state supreme-court posts this year increasingly resemble the knock-down, drag-out moneyfests that have become a common feature of most other campaigns.

"In an increasing number of states, there is just an explosion in terms of the amount of money being spent and an explosion in terms of the kinds of attacks that you see," says Mark Kozlowski of the Brennan Center for Justice at New York University School of Law.

It is a dangerous trend, say some analysts, that threatens to undermine public confidence in American justice. Others see it as proof that democracy is flourishing - that even the somewhat insulated judiciary can be held accountable for actions on the bench.

Multimillion-dollar bruising campaigns currently under way could tip the ideological balance of power on state supreme courts in Ohio and Michigan. Hundreds of thousands of dollars are being pumped into supreme- court elections in Alabama and Mississippi. And contentious and expensive races have been waged or are still under way in supreme-court campaigns in Idaho and Illinois, among other states.

In a show of concern, the chief justices of the 15 largest states that elect judges have called a "summit meeting" in Chicago this December to examine the scope of the issue and discuss possible reforms.

With the money and the higher stakes have also come more-aggressive and negative campaign tactics - including expensive issue-advocacy TV advertising by special-interest groups acting independently of candidates. In some cases, they are operating under a cloak of secrecy.

The most high-profile example is Citizens for a Strong Ohio, which is reported to have spent $1.7 million on TV ads critical of Ohio Supreme Court Justice Alice Robie Resnick.

Candidates for judgeships are bound by canons of judicial ethics to avoid making false or misleading statements about their opponents. In addition, they are barred from suggesting how they might rule on particular issues once on the bench.

But even these basic codes of conduct are being eroded by the mounting expense and pressure to win in high-stakes elections.

"It just reflects the growing culture of money-saturated politics, and it is seeping down to every level," says Brenda Wright of the National Voting Rights Institute in Boston.

The nation's founding fathers recognized a need to insulate the judiciary from political pressures, so they formed a system in which federal judges are appointed for life and can only be removed for misconduct.

Eight states take a similar approach, with appointment or merit-selection systems for judges. But in 42 states, at least some judges must face election.

Competing for votes and assembling a hefty campaign war chest can be a tricky proposition for someone whose role is primarily to apply the law in a neutral manner.

"Legislators are free to vote for whatever they want to vote for. Judges in 90-plus percent of their actions are severely limited by relevant law," says Roy Schotland, a judicial-elections expert at Georgetown University Law Center in Washington.

"Judges are not supposed to be politicians," adds Elizabeth Dahl of The Constitution Project, a Washington-based reform group. "They are not supposed to be engaged in partisan sniping or advocating zealously for certain positions. They are supposed to be seen as neutral, fair, and unbiased," she says.

The most contentious judicial races tend to pit those with a pro-business perspective against those with a pro-consumer, pro-labor perspective.

Many of the campaigns are waged against a backdrop of tort-reform efforts, pitting plaintiffs lawyers and consumer groups against corporate defense lawyers and their business and industry clients.

That's what happened in Texas in the early 1990s. Analysts say the resulting influx of money to Texas Supreme Court candidates and incumbents continues to create the appearance that justice in Texas can be bought.

Substantial contributions are made by the same lawyers, business groups, and industry representatives who later appear as parties before the court.

One study in 1998 found that 60 percent of Texas Supreme Court decisions involved someone with a stake in the outcome who had made a campaign donation to at least one of the justices who decided that case.

While this may not be direct evidence of a corrupt quid pro quo, it represents a cost to the integrity of the court. A poll conducted by the Texas Supreme Court found that 49 percent of state judges, 79 percent of Texas attorneys, and 83 percent of Texans polled believe that campaign contributions have "a significant influence" on judicial decisions.

Analysts say it isn't just Texas.

"The business community, under the tort-reform banner, has been moving money into judicial elections across the country," says Craig McDonald of Texans for Public Justice, a watchdog group that monitors the Texas judiciary.

Samantha Sanchez of the National Institute on Money in State Politics in Helena, Mont., sees the same movement. "There are political consultants who can come to your state and set up a 'take over the supreme court' operation for you," she says.

(c) Copyright 2000. The Christian Science Publishing Society

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