Faced with a large judgment for dumping cancer-causing toxins into the local water supply, corporate interests realize that their only hope to reverse the decision comes from the state Supreme Court. That court is so closely divided that one judge could make all the difference. Determined to squeeze in someone sympathetic to their needs, the corporate interests find a no-name candidate to challenge a liberal justice. And after a high-spending campaign filled with dirty tricks, the no-namer finds himself with a seat on the state's highest court.
If this plot sounds like John Grisham's fiction, you're right. But wait:
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.
The most promising example of selection comes from Missouri. There, a diverse nonpartisan nominating commission selects and forwards the three best candidates to the governor. The governor then chooses from that slate. The judge serves for a trial period and the public then votes in a retention election. If the judge is retained, he or she then serves for a full term.
Many judicial candidates concede the current system is broken. Recently in West Virginia, one Supreme Court candidate admitted that even he favors merit selection.
The Missouri method isn't perfect, but it's far better than the interest-group-based money free-for-alls permeating state judicial elections.