The 30-second TV spot is stark and brutal. First it shows the bespectacled face of candidate Louis Butler, then a grainy mug shot of an ex-con. "Louis Butler worked to put criminals on the street," the narrator warns, "like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities." After Mitchell's release from prison, the narrator continues, he raped again. "Can Wisconsin families feel safe with Louis Butler?"
This attack ad wasn't from a bitterly fought congressional race. It was from a 2008 campaign for state Supreme Court justice—a position that until recently was considered above the fray of partisan politics. Butler, the first African American Supreme Court justice in Wisconsin history, was defending his seat against a trial court judge whose campaign tactic recalled the GOP's infamous Willie Horton hit job on Michael Dukakis during the 1988 presidential campaign. Long before ascending to his state's highest court, Butler had been assigned as Reuben Lee Mitchell's public defender—he wasn't the judge in the case, as the nasty ad implied.
Butler's opponent, Michael Gableman, had been showered with campaign donations from business leaders, who were keenly aware of Butler's role in two decisions. One was a 4-3 ruling to strike down a $350,000 limit on so-called pain-and-suffering damages in malpractice suits. The other held that if an individual harmed by lead paint exposure couldn't identify the producer, then multiple paint companies could be held liable under a legal theory known as "risk contribution."
While Butler's and Gableman's campaigns spent a combined total of $1.2 million on the race, outside groups aligned with the US Chamber of Commerce and the state's labor unions spent $3.6 million, funding 89 percent of all the TV ads. Butler was the first sitting justice to get booted from the court in 40 years.
By 2011, with Wisconsin reeling from political battles over Gov. Scott Walker's union-busting agenda, the next Supreme Court race was equally ugly. This time it was conservative Justice David Prosser defending his seat; a misleading ad from a partisan group backing his opponent claimed that Prosser, as a district attorney in 1978, had helped cover up sexual abuse of two young boys at the hands of a Catholic priest. (The abuse had only emerged years later; the victims called the ad "offensive, inaccurate, and out of context.")
Although Prosser successfully defended his seat, he says that the election—which saw nearly $5 million in total campaign spending—poisoned relationships on the court. The tension boiled over weeks later, when Prosser and Ann Walsh Bradley, a liberal justice, engaged in an argument that got physical as four of their fellow justices looked on. Bradley claimed Prosser choked her, while Prosser said he raised his hands in self-defense as Bradley charged at him. In police interviews, two conservative justices sided with Prosser, and two liberal justices with Bradley. Investigations by the county sheriff, the local DA, and a special independent prosecutor all cleared Prosser of any wrongdoing, but the controversy still festers. When I spoke with Prosser in September, written in chalk on the sidewalk outside the state Capitol was an invitation to visit him for "free chokes."
Bitter, costly judicial elections are by no means unique to Wisconsin. These days, as more candidates for the bench face rough contests—buffeted increasingly by outside money, thanks to the US Supreme Court's 2010 decision in Citizens United—state judges around the country often raise six- and seven-figure sums, mount statewide campaigns, and fend off attack ads from groups that don't disclose their donors. This trend has escalated over the last decade and a half as partisan groups realize that donating to judges can get them more influence, for less money, than bankrolling legislative campaigns. After all, the donors often end up with business before the very judges they are helping elect.
These are also the judges that most citizens who interact with the system have to face. Can Americans still trust in getting their fair day in court?
Court cases that make big news are usually in the federal system, where most judges are appointed by the president and confirmed by the Senate. Yet the vast majority of justice is done at the state level, where more than 100 million cases are filed annually (versus about 400,000 in federal courts). The nation's approximately 30,000 state court judges vastly outnumber their federal counterparts, and 85 percent of them will stand in at least one election during their career.
No two states pick their judges exactly the same way. Some hold partisan judicial elections, others have nonpartisan elections, and still others use merit selection—that's when legal experts select a short list of qualified candidates, the governor appoints one to the bench, and that judge later stands in a retention election.
The system has its roots in the Panic of 1837, a mini-depression fueled by rampant cronyism and massive overspending by corrupt governors and legislatures. Partisan elections replaced the tradition of elected officials appointing their friends to the bench, but for decades connections and loyalty still mattered most, with party bosses determining who won. Eventually states embraced nonpartisan elections and merit selection, and for most of the 20th century, judicial elections were a little-noticed corner of American politics.
Still, on occasion a contentious race attracted national attention. In 1977, Rose Bird became the first woman appointed to the California Supreme Court and its first female chief justice. An avowed foe of capital punishment, she voted to vacate all 61 death penalty verdicts that came before her, prompting Republican Gov. George Deukmejian to label her a "soft-on-crime liberal." With Bird up for retention in 1986, oil and agribusiness companies, which generally saw Bird's liberal views as a threat to their interests, poured more than $5.6 million into a campaign that would unseat her. It was an early glimpse of a reliable strategy for big business: Using the soft-on-crime theme to oust judges considered unfriendly to corporations.
Around that time, a political consultant by the name of Karl Rove was plotting his own assault on the Texas Supreme Court. Rove had helped launch the "tort wars" in response to what some Republicans saw as a court system too cozy with trial lawyers and too eager to slam corporations with hefty judgments that Rove had dubbed "junk lawsuits."
Running on the slogan "Clean Slate '88," conservative candidates backed by Rove's operation won five of the six open seats on the Texas Supreme Court. Not long after, Rove teamed up with the Business Council of Alabama to engineer a similar Republican takeover in that state.
Two years later, the US Chamber of Commerce, under the leadership of an aggressive new president named Tom Donohue, picked up on Rove's strategy. Pledging to "play hardball" against "frivolous" lawsuits, the Chamber spent $10 million on judicial races in 2000 alone. It pumped $4.4 million into Ohio's Supreme Court election—the largest expenditure from a single source on a court race in US history. In the following years, the Chamber injected tens of millions into races in Illinois, Michigan, Mississippi, and Wisconsin. Corporate America had grasped the potential to install friendly judges who could crack down on costly class actions and neutralize the efforts of consumer advocates. "We're clearly engaged in hand-to-hand combat," as Donohue put it, "and we've got to step it up if we're going to survive."
Unions spent millions on these races as well—particularly across the Upper Midwest, as labor leaders recognized they could get a great return on investment by backing justices sympathetic to workers' rights. As an official with the Ohio AFL-CIO once said: "We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators."
A major showdown came in 2004, in West Virginia's Supreme Court election. Don Blankenship, the former CEO of Massey Energy, donated $3 million to Republican candidate Brent Benjamin. Meanwhile, a nonprofit funded primarily by Massey Energy ran TV ads accusing incumbent Justice Warren McGraw of getting a child rapist out of prison and into a job at a high school. After Benjamin won, the investment paid off big time: He later cast the deciding vote to overturn a lower court's $50 million verdict against Massey Energy. Two years later, the US Supreme Court ruled that Benjamin should have recused himself. It overturned the decision and sent the case back to West Virginia. (Massey Energy ultimately prevailed in state court.)
Corporate interests also reaped a huge return on investment in the 2004 Supreme Court election in Illinois. Five years earlier, a jury had handed down a $1.19 billion penalty to the insurance company State Farm for requiring millions of claimants to accept subpar replacement auto parts. State Farm and its employees—working through the US Chamber, the Illinois Republican Party, and an Illinois-based tort reform group—steered $4 million to elect a sympathetic judge named Lloyd Karmeier to the Supreme Court, which was considering State Farm's appeal of the auto parts verdict. Karmeier, his opponent, and various outside groups spent a record $9.3 million on the race. Karmeier, who would later acknowledge that the sum was "obscene," won easily. And the millions State Farm spent were a pittance compared with what it gained: The next year, Karmeier cast the deciding vote to overturn the more than $1 billion verdict against State Farm.
Up to this point, the big spenders were mostly targeting contested judicial elections—ones in which a candidate challenged a sitting justice. Then came the Iowa Supreme Court's 2009 decision in Varnum v. Brien, in which the seven justices unanimously ruled that the state's ban on same-sex marriage violated the state constitution. Social-conservative groups leapt into action, targeting three of the seven justices who were up for retention election—ones where voters only check "yes" or "no." The National Organization for Marriage and its allies spent nearly $1 million and defeated all three. "They wanted to make sure we were punished for our decision and that other judges witnessed that so they wouldn't do it either," former Justice Marsha Ternus told me.
The strategy of turning sleepy retention elections into political showdowns has been spreading. In Florida's 2012 retention elections, the Koch-backed Americans for Prosperity and the Republican Party of Florida spent hundreds of thousands of dollars to unseat three sitting justices. A group called Defend Justice From Politics spent $3.1 million on the justices' behalf, helping them prevail. In Michigan in 2012, two anonymously funded nonprofits, the Judicial Crisis Network and Americans for Job Security, poured $2.1 million into attack ads against five judges on Michigan's 6th Circuit Court, though the judges won out. And earlier this year, Tennessee's lieutenant governor, Ron Ramsey, took it upon himself to spearhead an effort to unseat three sitting state Supreme Court justices—and, along with them, the attorney general, who is appointed by the court. Ramsey's PAC pumped $425,000 into a group running negative ads that blasted the three justices as "liberal on crime" and for "helping advance Obamacare." Funds were also contributed by Americans for Prosperity and the GOP's State Government Leadership Foundation, which said it planned to spend an additional $5 million in 2014 on judicial races in North Carolina, Tennessee, and elsewhere.
Though the three Tennessee justices prevailed in the end, one of them, Connie Clark, told me she's concerned about the precedent set by the fight. "As long as there are no limits on outside money," she says, "then this will become the new normal."
The transformation of judicial campaigns has alarmed another veteran of the court system. "Judicial elections pose a serious threat," former US Supreme Court Justice Sandra Day O'Connor told Mother Jones. "If judicial decisions are in fact not fair and impartial—or even if they are perceived as being biased—the basis of support for our courts crumbles."
Initially, the 2011-12 election season—the first full cycle since Citizens United—saw a modest dip in overall reported spending on state judicial races, compared to four years earlier. But that is likely because much of the new spending does not have to be disclosed or tracked. This year, for example, Americans for Prosperity-Tennessee announced a "major new effort" to educate the public about the "liberal records" of the three justices—and not a penny of that spending was reported to the state. The outside spending on judicial races that we do know about rose to a record-high $24.9 million—a nearly sevenfold increase since 2000, and now accounting for 40 percent of the total spending on these campaigns.
Recent research suggests this flood of political money could be influencing judges' decisions. Emory University analyzed 2,345 state supreme court decisions from all 50 states between 2010 and 2012 and concluded that the more campaign money justices received from business interests, the more likely they were to vote in favor of businesses appearing before them. (Interestingly, the study found a stronger tie between business donations and Democratic justices' decisions. Republican justices, it speculated, were already more favorably inclined toward business interests, so the campaign money didn't make as much of a difference.) Another analysis, by the left-leaning think tank Center for American Progress, suggested that as more money was spent on soft-on-crime attack ads in campaigns, justices were increasingly siding with the prosecution.
The public may be starting to catch on: A 2013 poll by Justice at Stake, a nonprofit group focused on reforming the system, found that 87 percent of Americans believe that campaign donations could influence court rulings. "You can't expect judges to act like Huey Long on the campaign trail and expect them to be Solomon in the courtroom," says Bert Brandenburg, the group's executive director.
A case pending before the US Supreme Court could inject even more politics into judicial races. In Lanell Williams-Yulee v. the Florida Bar, a county-level judge wants the nation's high court to strike down laws in 30 states blocking judges from personally asking donors for campaign cash. In those states, treasurers and fundraising consultants typically make the ask on behalf of a judicial candidate. Only nine states currently allow judges to solicit donations directly for their campaigns, but in those states, "the road to victory begins with the solicitation of money," Wallace Jefferson, the former chief justice of the Texas Supreme Court, has written. "The 'ask' is undignified, and the 'give' is fairly compelled." For those fighting to insulate judges from electoral politics, the elimination of the fundraising ban would be yet another step in the wrong direction.
Some researchers dispute the notion that rough-and-tumble judicial elections are a problem. One recent Michigan State University study of supreme court races concluded that attack ads did not hurt incumbents in partisan elections. Other studies found that nonpartisan elections are less likely to draw a challenger, are less competitive even when there is a challenger, and attract fewer voters than partisan elections do.
The debate boils down to a fundamental notion: whether the judicial branch of government is unique from the other two and should be insulated from politics. With court integrity hanging in the balance, should judges be chosen the same way we pick presidents and members of Congress?
Randy Shepard, who served as the chief justice of the Indiana Supreme Court for 25 years, retired from the court in 2012 as the longest-serving state chief justice in American history. A lifelong Republican in a red state, Shepard has gone through the merit selection process and run in multiple elections. "What's at stake in these big-money elections is the promise of due process and an impartial court," he told me. "Do I as a citizen walk into that courtroom standing on a relatively level playing field?"
He offered up a hypothetical from a law review article he wrote that, he proudly noted, was cited by Justices Ruth Bader Ginsburg and Anthony Kennedy in the Massey Energy case—the one where the high court ruled that a judge who'd received massive campaign contributions connected to a company had to recuse himself from a case involving that company. "Say you're going before a trial judge making a decision about the custody of your grandchildren, and your evil son-in-law or daughter-in-law had made a very large contribution to the judge. How would you feel about that? You wouldn't feel very optimistic, would you?"