If you think judges should be above petty politics, try not to watch them campaign this year.
Justice Martin Johnstone's first campaign for the Kentucky Supreme Court was a big deal. It was 1996, and state judicial elections had always been small-time affairs. Judicial candidates rarely advertised on television, and fundraising consisted mostly of asking for small contributions from friends and associates within the state. But Johnstone's election became a milestone. He and his opponent, an independently wealthy plaintiff's lawyer, set a new spending record: Theirs was the first million-dollar judicial contest in Kentucky history.
A decade later, the million-dollar mark is ancient history. The race to succeed Johnstone, who is retiring at the end of this year, will be a high-spending, high-stakes event, propelled by unprecedented levels of special-interest spending and politicking more akin to a U.S. Senate campaign than an election for a state court. And it won't just be costly: It will be, in all likelihood, shrill. In the 10 years that Johnstone has served on the Kentucky Supreme Court, judicial elections have become angrily politicized, with candidates offering their opinions on issues certain to come before them on the bench. "When I ran in 1996," says Johnstone, "we were forbidden from giving our views on God, gays, guns and all the other hot-button issues of the day. This year, we're going to deteriorate into the same gutter politics that partisan politicians have been wallowing in for so many years."
The fight for Johnstone's seat isn't unique. In fact, it's more the rule than the exception. In a staggeringly short time, state judicial elections across the country have become vastly more competitive. The influx of special-interest money and influence, coupled with court decisions and legislation that gives judicial candidates more latitude to campaign, has drastically changed the ground rules. Judicial candidates, once perceived to be above the fray of partisan campaign issues, are no longer insulated from them. There's no question that this grants them greater freedom of speech and allows for a judicial bench that reflects the opinions of a state's citizens. But there are also signs that it is threatening the independence and impartiality of the state judiciary in America.
This election year will be a watershed for state courts. Nearly 80 Supreme Court seats will be on the ballot in 30 states, with hundreds of other judicial contests further down the ballot. The perennial battlefields of Ohio, Michigan and Alabama will attract a lot of attention. So may Tennessee and South Dakota, in which every sitting Supreme Court justice is facing a vote. But an even better state to watch may be Kentucky, where a recent constitutional change has dictated that all but two of the state's 274 judges -- circuit, district, appellate and supreme -- must face a vote this year. As one court watcher puts it, "Kentucky is going to be as close to a free-for-all as you can imagine."
The methods for choosing judges vary enormously from state to state, ranging from appointment, in which a judge never faces voters at all; to retention elections, in which appointed judges later face a yes-or-no vote on their performance; to full head-to-head campaigns, which are nonpartisan in some states and partisan in others. More than 87 percent of the country's 11,000 judges face some form of voter scrutiny, including Supreme Court justices in 38 of the 50 states. That ratio hasn't changed much in the past few decades; recent efforts to alter the judicial selection process in states such as Missouri and Indiana have been non-starters.
What has changed, however, is the amount of attention -- and money -- that judicial elections receive from special-interest groups. "In the past four to six years, there's been a real explosion in this arena," says Jesse Rutledge of Justice at Stake, a public education group that tracks state judicial spending. "Interest groups are playing larger roles than ever in these campaigns. They are seeing state courts as a place to install 'their' judges."
From 1998 to 2000, in just one election cycle, spending in state judicial elections increased 61 percent. The average cost of winning a judicial election jumped 45 percent between 2002 and 2004, to more than $650,000. The 2004 campaign year also saw the single most expensive state judicial contest in United States history. Two Illinois Supreme Court candidates combined to raise more than $9.3 million, far exceeding the previous national record, set in Alabama in 2000, when spending reached $4.9 million
The interested organizations involved in these campaigns generally fall into two broad categories. The first involves cultural and social issues -- the "God, gays and guns" groups that Martin Johnstone says used to be absent from judicial politics. More groups are pressuring judicial candidates to commit themselves on issues such as abortion and capital punishment -- and then contributing money accordingly. The other interest-group battle centers around tort liability. Plaintiffs' trial lawyers, who want a judiciary amenable to generous damage awards in civil cases, are opposed by chambers of commerce and other business alliances that seek to limit what they see as frivolous lawsuits against them. In terms of spending, this category far outstrips the social and cultural lobby. In the 2004 judicial elections, direct campaign contributions to judicial candidates from lawyers and business groups totaled nearly $47 million. That's almost eight times the amount those groups donated in 1990.
But it's only the tip of the special-interest iceberg. Business groups and trial lawyers spend millions more in independent advertising and promotional efforts. "The trend now is that these groups are going much more undercover, channeling their money to tax-free 527s or 501(c)(3) groups," says Rachel Weiss, a researcher for the Institute on Money in State Politics. The groups often have vague, innocuous names, such as Justice for All, a group of trial lawyers and labor leaders that spent heavily in the 2004 Illinois Supreme Court election. In West Virginia in 2004, coal company money was used to form a group called And for the Sake of the Kids, which was specifically created to unseat a state Supreme Court justice.
The real power player on the business side is the U.S. Chamber of Commerce, which has dedicated millions of dollars in recent elections to reshaping the state-level judiciary with business-friendly judges. The chamber, which represents the interests of more than 3 million businesses across the country, has reportedly spent $120 million in just the past four years, most of it through the Institute for Legal Reform, a tax-free affiliate. All that spending is paying off: In 2004, the chamber won every single contest in which it was involved. Those triumphs all but guaranteed that spending by groups on both sides of the tort overhaul debate would continue to rise. "We're going to see more of the same for 2006, if not worse," Weiss predicts.
One reason judicial campaigns are costing so much is that they're being waged more and more on the television screen. From 2000 to 2004, the number of states that saw judicial TV ads quadrupled to 16, meaning there were ads in four out of every five states in which candidates ran head to head. Spending on TV ads in 2004 totaled $24.4 million, obliterating the previous record of $10.6 million set in 2000.
Advertising consultants and focus groups are now as much a part of judicial campaigns as they are a part of legislative elections. And the advertising is showing up sooner. As recently as 2000, television ads for judicial campaigns were clustered in the few weeks preceding the general election. Now, they are appearing in primaries. The number of states with television commercials in judicial primary campaigns jumped from two in 2002 to nine in 2004.
Whenever in the campaign season they appear, the ads seem to make a difference. In 2004, 34 judicial elections featured some television advertising, and in 29 of them, the candidate with the most ad expenditures won.
A Race to the Bottom
A trend that parallels the meteoric rise in campaign spending -- and perhaps contributes to it -- is the increased willingness of judicial candidates to voice their opinions on issues of law. Courts and legislatures have given these candidates greater freedom than ever to campaign, align themselves with a party, and personally solicit funds; in short, to behave in almost every way like a candidate for any other office. For decades, states that elect judges have imposed strict canons restricting them from discussing topics in their campaigns that may come before the bench later. But in 2002, the U.S. Supreme Court struck down restrictions of that sort in Minnesota, saying they violated the candidates' free speech rights. Subsequent lower courts have used that case to throw out similar canons in other states. Then, this January, the U.S. Supreme Court took another step in knocking down judicial campaign restrictions: It declined to review a lower court ruling (again in Minnesota) that had prohibited judicial candidates from identifying party affiliation or personally soliciting campaign funds.
The net effect of these changes is that voters will be able to find out more about the views of judicial candidates than they ever have before. That's an important -- and positive -- evolution, says James Bopp Jr., a First Amendment lawyer who successfully argued against restrictive canons in the 2002 Supreme Court case. "Citizens will be more informed about their judicial philosophy, and the judges will be held accountable by the people." Bopp, who also has argued successfully against the canons in other states, says the changes will help the candidates themselves. "They will now be able to fully participate in their elections," he argues. "Before, they had to stand there and be silent and hear special-interest groups talk about them. Candidates can be criticized fairly, and they can be criticized unfairly. They should be able to respond."
But critics say that lifting restrictions on judicial campaigning only leads to more special-interest money and more polarized judicial politics. Once candidates are allowed to voice their opinions, interest groups will do everything in their power to make sure they do. "Candidates are now being pressured by interest groups to take sides and engage in the kind of politicking you'd expect of a political race," says Jesse Rutledge of Justice at Stake. "There's this systemic pressure that just keeps growing and growing. It becomes a race to the bottom."
That's the fear some have in Kentucky. This past October, the state Supreme Court there relaxed its judicial campaign canons, in response to a lawsuit brought by the Family Foundation of Kentucky, represented by James Bopp. The result, says Justice Johnstone, is that the elections this year will be more caustic and more expensive. "Before," he says, "there wasn't very much special-interest participation because you couldn't get your money's worth. Judges couldn't say whether they supported your position or not. Now, we're going to see a great influx of special-interest participation."
Many of the groups that spend money on judicial contests continue to insist that there is no connection between the money they spend and the tendency for judicial candidates to announce their opinions on the stump. "There are those that suggest we want to get judicial candidates to make promises on issues," says Keith Ostrander, executive director of the Family Foundation, the group that successfully sued to strike down the canon in Kentucky. "That couldn't be farther from the truth. We simply want to establish a good dialogue between judicial candidates and the public. If you don't know the philosophy of a judge, you're just voting for a pig in a poke."
In response to the spiraling costs and the increased electioneering in judicial elections, some states have taken steps to rein in the campaigns. High courts in Florida, Illinois, Kentucky, Ohio and elsewhere have established campaign conduct committees to oversee judicial races. These committees, typically made up of both public officials and private citizens, aren't empowered to censure candidates. But they can call attention to actions they consider unethical or improper. Other states have begun producing voter guides, profiling judicial candidates and outlining their stated positions. Still others have lowered campaign contribution limits, in an effort to attract small donors to balance the interest groups.
No state has done as much to limit the scope of judicial campaigns as North Carolina, which currently has the nation's only system of full public financing for judicial candidates. (It's also the only state that mails official voter guides to every resident.) Six years ago, the state saw its first million-dollar judicial campaign. As a result, lawmakers in 2002 went to a non-partisan election process and approved public financing for the campaigns. In 2004, the first year the new system was used, 14 of the state's 16 judicial candidates attempted to qualify for public funds; 12 ultimately did. One result was that private contributions to judicial campaigns in North Carolina fell by half.
The program produced benefits beyond the reduced expenditures, says Chris Heagarty, executive director of the North Carolina Center for Voter Education, which fought for the reforms. "There was an initial panic, especially from incumbents, but it worked to equalize everyone's fundraising. Even the candidates who ran with public financing and lost commented on the fairness of the system."
In order to qualify for public money, a judicial candidate in North Carolina must raise a threshold amount in small-dollar contributions before the primary. After the primary is over, those who accept public funding cannot take any donations from private sources. "That whole package of reforms is going to help judicial candidates stay above the political fray," says Heagarty.
Of course, there are those who believe judicial elections are better when they are more political, not less. Bopp and others argue that greater competition and more open campaigning from potential judges serve the public interest and the interest of democracy. Still, it is difficult to watch the developments of the past few years without picking up at least a hint that something unsavory might be going on. Some critics go further than that. "People now believe that if they contribute enough money, they can put judges on the bench who will be friendly to their issues," says Michael Greco, president of the American Bar Association. "It's corrosive and damaging to our justice system, and it's dangerous to the integrity and the independence of the judiciary."
Martin Johnstone is certainly worried. The outgoing Kentucky justice says the politicization of judicial elections "will seriously erode the confidence and the esteem in which people hold the judiciary." In January, even before the state's filing deadline, three candidates were already vying for Johnstone's seat. They were already out campaigning and raising money, largely unhindered by any restrictions on voicing their opinions. That, says Johnstone, is not a positive sign. "I really fear that this is going to be a new day," he says. "And not a good day for judicial politics."