When Richard Bernstein decided to run for a seat on the Michigan Supreme Court, he had a lot stacked against him: He was a Democrat, he had no experience as a judge, and he was blind—something he'd dealt with his entire life.
That ranks as the third-highest amount of overall spending in judicial elections during the 2013-14 cycle, according to the latest installment of "The New Politics of Judicial Elections," a series of reports that have tracked spending trends in judicial elections since 2000. Even though he put $1.8 million of his own money into the race, Bernstein says it was just enough to get the job done, especially with a tide of PAC money flowing through various entitles that funded ads against him.
"You're not really able to see firsthand the amount of money that was spent against [you]," Bernstein told Mother Jones this week. "We were able to raise the $2 million, but that is what allows you to be competitive. I was able to raise and spend the bare minimum to contend in a race like this."
Bernstein says he's very much in favor of voters choosing which judges sit on the bench. "It's not just about raising money," he says. "What it's really about is having to go out and connect with people."
But he can see why people are concerned about dark money flooding the zone. That's one of the main takeaways of the latest "New Politics of Judicial Elections." A product of Justice At Stake, a group focused on limiting special-interest interference in courts, and the Brennan Center for Justice, a nonpartisan law and policy institute, the reports have documented the explosion in judicial spending over the last 14 years. Supreme Court justices in 38 states must face voters to either earn their seats or keep them. But over the last few years, what were once sleepy, local affairs have grown into multimillion-dollar races that have increasingly drawn the attention of special-interest groups from all over the country.
According to the newest report, released this morning, state Supreme Court candidates spent more than $34 million on races in the 2013-14 election cycle. That total was slightly less than the amount spent in 2011 and 2012. One reason is that there were a large number of unopposed candidates. Even so, political parties and outside special interests poured $13.8 million into the races. That figure is 40 percent of the total amount of money spent during that cycle, $13.8 million. It's the first time such a huge percentage of spending came from these outside groups during a non-presidential election cycle.
"The big takeaway, I would say, is that it's well financed interests who are doing this," said Scott Greytak, Justice At Stake policy counsel and research analyst, and the lead author of the new report. "And they have clear, known, financial interests before the courts."
In the 1990s state Supreme Court candidates raised a combined $83 million. However, that changed after the political right, mainly through Karl Rove, saw a way to reshape what were seen as anti-business state courts by playing more aggressive politics in state judicial races (see previous Mother Jones coverage of that dynamic here). Since then, state Supreme Court candidates have raised more than $236 million, but independent spending by special-interest groups and state political partieshas brought the total to nearly $325 million since 2000. "How do we convince Americans that justice isn't for sale—when in 39 states, it is?" former Alabama Supreme Court Chief Justice Sue Bell Cobb wrote in Politicoin March. "When a judge asks a lawyer who appears in his or her court for a campaign check, it's about as close as you can get to legalized extortion."
Donors typically want the reassurance that the judges they write checks for will think the way they do and will "rule accordingly," Cobb notes. According to a basic tenet of a typical judicial code of conduct, the appearance of bias undermines the judicial system. When judges are forced to run inherently political campaigns, the line blurs, the theory goes.
"Unfortunately, politicized judicial elections don't seem to be going away," says Alicia Bannon, senior counsel at the Brennan Center for Justice's Democracy Program, and a coauthor of the report. "We've been tracking spending in state Supreme Court races since the year 2000 and we've continued to see a trend of highly politicized races and a flood of money coming into state Supreme Court contests."
Some other notable numbers:
Direct contributions to judicial candidates of more than $1,000 made up a majority of the contributions in 15 of the 19 states with judicial elections in the 2013-14 cycle.
In three states (Alabama, Pennsylvania, and Illinois), contributions of $1,000 or more made up at least 95 percent of all contributions. Small donors, by and large, don't have a seat at the table.
The top 10 spenders nationwide—including the Republican State Leadership Committee, Justice for All NC (a Republican effort), the Michigan Republican Party, Campaign for 2016 (a trial-lawyer-backed organization in Illinois), and others—accounted for40 percent of all contributions during the 2013-14 cycle, including candidate contributions and outside, independent spending. Two-thirds of all outside spending by those top 10 spenders supported Republican and conservative candidates, as 7 of those top 10 spenders were conservative or business groups or state Republican parties. That reflects a pattern that's been in place over the last several cycles.
The third-biggest spender of the cycle was Bernstein, the Democratic state Supreme Court justice in Michigan, who donated more than $1.8 million of his own money to his successful campaign.
Three states saw record spending in the 2013-14 cycle: North Carolina ($6 million), Montana ($1.5 million), and Tennessee ($2.5 million).
Retention elections, which are races where voters give a yes or no vote to keeping a judge on the bench, continued to be costly affairs. Four states held retention elections and saw a combined $6.5 million in total. Between 2001 and 2008, retention elections averaged a total of $490,000 total per cycle.
The sums of money involved in these races have forced judges to run campaigns, which cost money. And while some judges are okay with that, others feel that it degrades the position. HBO's John Oliver mocked judicial elections in a segment earlier this year:
The money often comes from lawyers who appear before judges and from lobbyists acting on behalf of businesses and special interests that also have business before the court.
"There's been a real shift in norms…among judges and judicial candidates in terms of what they're willing to do and say in their campaigns," Bannon says. "And I think it has troubling implications for the public's confidence in the fairness of our courts. In the end, I don't think the public wants our judges to be politicians in robes, but increasingly that's what we're seeing as these campaigns continue to be dominated by special-interest money and are bearing all the hallmarks of an ordinary political contest."
Consider Judith French, a sitting Ohio state Supreme Court justice appointed in 2013 by GOP presidential candidate and Ohio Gov. John Kasich. French is listed in the report as having raised the second-highest amount of contributions during the 2013-14 cycle ($1.1 million). During a political rally before the November 2014 election, French told a Republican gathering:
I am a Republican and you should vote for me…Let me tell you something: The Ohio Supreme Court is the backstop for all those other votes you are going to cast. Whatever the governor does, whatever your state representative, your state senator does, whatever they do, we are the ones that will decide whether it is constitutional; we decide whether it's lawful. We decide what it means, and we decide how to implement it in a given case. So forget all those other votes if you don’t keep the Ohio Supreme Court conservative.
Money doesn't always buy victory. Clifford Taylor, the former chief justice of the Michigan Supreme Court, was himself an avid fundraiser during three campaigns: He raised $1.3 million for his election in 2000 and $1.8 million during the 2008 campaign. But that didn't prevent him from becoming the first sitting chief justice in the state's history to suffer defeat at the hands of a challenger in 2008. Taylor, a Republican, was attacked by the state's Democratic Party in more than 2,800 ads, which painted him as a tool of business interests. And although he had more overall supportive airtime than his challenger, his bad relationship with trial lawyers, along with an ad that alleged he fell asleep on the bench—a claim he disputes and that Factcheck.org said wasn't proven—may have helped generate votes that cost him the race.
"People aren't buying judges," he said. "People are buying an approach to the law. And that's a very different thing."
The fight against money in judicial elections by groups like Justice At Stake, he said, is a political ploy to advance liberal policy that otherwise didn't get through state legislatures.
"They consider the judicial branch to be the action arm of the American left," he said.
The money spent, such as the $1.6 million spent by the Republican State Leadership Committee across three states and the $2 million spent in Illinois by the trial-lawyer-backed Campaign for Illinois, disproportionately goes to fund television ads. Some of the ads are fairly positive, but the report notes that many of them distort opponents' records—such as the one portraying Taylor as sleeping on the bench—or, more typically, paint opponents as soft on crime.
During the 2013-14 cycle, more than half the television ads focused on criminal justice themes. The report points to studies that have linked the number of television ads that run during a state Supreme Court election to the decreased likelihood that a judge is to rule in favor of a criminal defendant. The report cites a 2013 US Supreme Court death penalty case in which Associate Justice Sonia Sotomayor wrote a dissent discussing judges' ability to override jury decisions in death penalty cases. Citing data that pointed to Alabama having a higher number of cases where judges overrule juries who vote against the death penalty, Sotomayor said electoral pressures were likely to blame:
"The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures."
She also cited ads in Alabama where judges seem to boast about the number of people they have sentenced to death.
Another major issue highlighted by the report is the continued rise in spending in retention elections—it has increased twelvefold, according to the report. In 20 states, judges run in retention elections to earn additional terms on the state Supreme Court bench. As the report points out, these races, historically, were low-budget affairs. But after 2010, when three Iowa Supreme Court justices faced a brutal retention election, and lost, retention elections have been seen as a way to flip courts. During the last cycle, spending on retention elections in four states (Tennessee, Pennsylvania, Illinois, and Wyoming) came in at nearly $6.5 million.
"Any form of judicial selection is going to have some form of politics in it," Bannon says. "I think the concern is when, in the context of judicial elections, what we've been seeing is that the role of money has become so all-encompassing and is really privileging a certain set of interests in ways that I think raise legitimate questions about whether or not that might be impacting the decisions courts are making."
Which one of these GOP candidates acknowledged having smoked weed?
When GOP presidential candidates appear at the University of Colorado-Boulder for their third debate, they will focus on jobs and the economy. Given this theme and the debate's location in the first state to legalize marijuana, it's likely that the state's recreational marijuana industry will be discussed.
But the Colorado model—and similar ones in Washington, Alaska, and Oregon—isn't exactly popular amongthe political right. Presidentialhopefuls have had to walk the line between their commitment to states' rights and a GOP base that's generally anti-drugs and pro-enforcement of federal drug laws.
Marijuana legalization is a tricky subject: Nearly half of Americans have tried marijuana, and a growing percentage supports legalization, according to the Pew Research Center. But not all demographic groups support it equally. Hispanics, for example, support legalization at lower rates than whites and blacks. And public consumption is still opposed by a majority of those surveyed. Jeb Bush, Ted Cruz, and Rand Paul have admitted to trying pot—Marco Rubio has been impossible to pin down—but they all oppose federal legalization.
Here is a rundown of the candidates' public statements on legal weed. (Some were collected by an advocacy group, the Marijuana Policy Project, which supports legalization of marijuana.)
Donald Trump: The GOP front-runner's position has changed over the years. In 1990, he was quoted in the Sarasota Herald-Tribune as saying that US drug enforcement efforts were "a joke" and that drugs should be legalized to "take the profit away from these drug czars." Fast-forward 25 years and now Trump is opposed to legalization. "I say it's bad," he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado's legal weed. "Medical marijuana is another thing, but I think [recreational marijuana] it's bad. And I feel strongly about that." But what about states' rights? "If they vote for it, they vote for it. But they've got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent."
Dr. Ben Carson: Carson has said he's a fan of the war on drugs, and he told the Blaze he would "intensify it." He also supports medical marijuana "in compassionate cases." At a June campaign event in Colorado, he noted that "regular exposure to marijuana in the developing brain has been proven to result in a decreased IQ. The last thing we need is a bunch of people running around with decreased IQ." Therefore, he says, he'd enforce federal drug laws in which the use of marijuana is considered a crime.
Sen. Marco Rubio: Rubio does not oppose the use of medical marijuana, provided the substance has been through an FDA vetting process, but he opposes legalization in all other cases. When radio host Hugh Hewitt asked him about enforcing federal drug laws, Rubio said yes. But he left open the states' rights question.
"I think we need to enforce our federal laws," he said. "Now, do states have a right to do what they want?" He then got a little confusing. "They don't agree with it, but they have their rights. But they don't have a right to write federal policy as well." He then asserted that he doesn't "believe we should be in the business of legalizing additional intoxicants in this country for the primary reason that when you legalize something, what you're sending a message to young people is it can't be that bad, because if it was that bad, it wouldn't be legal."
This interview was in April. In February, Alex Conant, his campaign spokesman, told Politicothat Rubio believes that legalized recreational marijuana "is a bad idea, and that the states that are doing it may well come to regret it. Of course, states can make decisions about what laws they wish to apply within their own borders."
Sen. Rand Paul: As far as Paul is concerned, marijuana regulation is yet another states' rights issue. He's said he doesn't have a position on whether it should be legal or not, just that the federal government shouldn't be able to tell states what to do. "I'm not for having the federal government get involved," he told Roll Call in November 2014. "I haven't taken a stand on…the actual legalization. I haven't really taken a stand on that, but I'm against the federal government telling [states and territories] that they can't."
Paul helped spur one of the more memorable moments in the last GOP debate when, refusing to name names, he implied that one of the candidates was a hypocrite for having smoked marijuana as a teenager but then opposing it as a governor. "There’s at least one prominent example on the stage of someone who says they smoked pot in high school," Paul said. "And yet, the people who are going to jail for this are poor people, often African Americans and often Hispanics, and yet the rich kids who use drugs aren’t."
Gov. Jeb Bush: The former Florida governor acknowledged that Paul was talking about him and that yes, as a teen, he'd smoked pot. "I'm sure other people did it and didn't want to admit it in front of 25 million people," Bush said. "My mom's certainly not happy that I just did."
Gov. Chris Christie: Christie was outspoken in his opposition to legal recreational marijuana during the last debate. After Paul was asked about legalizing marijuana, Paul said smoking marijuana only harmed the person doing it. But Christie pounced, saying that smoking marijuana is not a victimless crime, and underscoring its supposed devastating effect on families. "Look at the decrease in productivity, look at the way people get used and move on to other drugs when they use marijuana as a gateway drug," he said. "It is not them that are the only victims—the families are the victims too, children are the victims too, and their employers are the victims also." Christie has said that, as president, he'd enforce federal laws when it comes to marijuana. "If you're getting high in Colorado today, enjoy it," he told a New Hampshire town hall crowd in July. "As of January 2017, I will enforce the federal laws."
Carly Fiorina: The former Hewlett-Packard CEO has come out against marijuana legalizationunder all circumstances, but she also supports states' rights. "I don't support legalized marijuana for a whole host of reasons, including the fact that this is a very complex chemical substance, and when we tell young people it is just like drinking a beer, we are not telling them the truth," she told the Hill in June. "But I think Colorado voters made a choice, I don't support their choice, but I do support their right to make that choice."
Sen. Ted Cruz: Cruz has consistently opposed recreational marijuana but nonetheless believes that legalization is up to thestates. "When it comes to a question of legalizing marijuana, I don’t support legalizing marijuana," he told Hugh Hewitt in April. "If it were on the ballot in the state of Texas, I would vote no. But I also believe that’s a legitimate question for the states to make a determination…I think it is appropriate for the federal government to recognize that the citizens of those states have made that decision, and one of the benefits of it, you know, using Brandeis’ terms of laboratories of democracy, is we can now watch and see what happens in Colorado and Washington State."
Gov. John Kasich: The Ohio governor is flatly opposed to all marijuana—recreational and otherwise—but also considers it a states' rights issue. He did tell Hewitt in April, "If I happened to be president, I would lead a significant campaign down at the grassroots level to stomp these drugs out of our country."
Gov. Mike Huckabee: Huckabee is another states' rights proponent, but otherwise is adamantly opposed to marijuana. "This idea of recreational marijuana, let's have Colorado have at it for a few years and let's see how that works out for them," he told an Iowa television station in October. "I've been to Amsterdam a few times. I don't want us to look like Amsterdam." But he added that he "probably" doesn't agree with federal raids of legally operating pot dispensaries.
After months of facing indifference from Congress, the people of Puerto Rico might finally be making progress on getting some help with the island's massive debt crisisfrom both the Obama administration and Congress.
Last Wednesday, the Obama administration outlined a proposal that would allow the island's entities to restructure debts, provide "independent financial oversight" to ensure Puerto Rico sticks to a financial recovery plan, reform the unequal treatment ofPuerto Rico under Medicaid, and allow Puerto Rico access to the Earned Income Tax Credit.
The next day, Puerto Rico Gov. Alejandro García Padilla, Rep. Pedro Pierluisi, and representatives from the Treasury Department testified before the Senate Committee on Energy and Natural Resources. García Padilla said steep cuts to public services had already been made, butthat if nothing were done,the island would run out of money next month. Committee chair Sen. Lisa Murkowski (R-Alaska) agreed that something needed to be done but wasn't convinced that Congress had been given accurate data with which to make decisions.
Sen. Elizabeth Warren, (D-Mass.)*, a member of the committee, spoke out strongly in favor of Pierluisi's Chapter 9 proposal. Warren threw her support behind the proposal earlier this summer and was a cosponsor on the Senate's version of a Pierluisi's House bill. Criticizing the debt holders—which she repeatedly called "vulture funds"—she pressed on the Treasury Department to "be just as creative in coming up with solutions for Puerto Rico as it was when the big banks called for help."
On Thursday, as former Secretary of State Hillary Clinton testified in front of the Republican-led House subcommittee on Benghazi, she spoke about the political nature of the hearing and compared it to what transpired after other terrorist attacks on American facilities overseas. Several hours into the hearing, Rep. Adam Schiff (D-Calif.) noted that "the ambassador was a friend of yours," and he wondered "if you would like to comment on what [it] is like to be the subject of an allegation that you deliberately interfered with security that cost the life of a friend." This was the opportunity for Clinton to begin talking more personally about the deaths of the Americans.
"I would imagine that I've thought more about what happened than all of you put together," she said. "I've lost more sleep than all of you put together. I have been racking my brain about what more could have been done, and what should have been done."
I would like us to get back to those times, congressman. Whereas I think one of you said [that in] Beirut we lost far more Americans, not once, but twice within a year. There was no partisan effort. People rose above politics. A Democratic Congress worked with a Republican administration to say, "What do we need to learn?" Out of that came the legislation for the Accountability Review Board. Similarly, after we lost more Americans in the bombings in east Africa, again, Republicans and Democrats worked together and said, "What do we need to do better?"
She then described herself "an optimist…hoping that that will be the outcome of this and every other effort, so that we really do honor not only those that we lost, but all those who, right as we speak, are serving in dangerous places representing the values and interests of the American people."
Demonstration co-leader Anthony Shahid protests the death of Michael Brown outside the Ferguson, Missouri, police station in August. Subsequent protests helped spur a national conversation on policing in America.
The United States has way too many people in jail. Our incarceration rate of about 500 prisoners per 100,000 people is the highest in the world, and those who are locked up are disproportionately people of color. A new group, including some of the law enforcement heads from some of the biggest cities in the country, will urge President Barack Obama on Thursday to help them to lower those rates, while also increasing public safety.
"We're incarcerating the wrong people, and we're measuring the wrong things," said Garry F. McCarthy, superintendent of the Chicago Police Department, during a question-and-answer session with reporters in Washington on Wednesday. He was in the capital for the meeting with Obama and the public launch of a new organization of law enforcement officials that is calling for massive changes to the criminal justice system. "Ten years ago, if you heard a police chief say that arrests were down, people would be criticizing, 'Why are your arrests down? You're not doing your job,'" McCarthy said. "Today it's something that we take pride in."