For Immediate Release                         November 5, 2008

Contacts: Charles W. Hall of Justice at Stake, 202-588-9454, chall@justiceatstake.org

2008 Supreme Court Elections: More Money, More Nastiness
But Voters in Referenda Move to Keep Election Politics Out of Their Courtrooms; Justice O’Connor Calls for State Reforms

State elections for Supreme Court justices ended 2008 much as they began, punctuated by runaway spending, partisan pressure, angry accusations and costly, secretly-funded ads by third-party special interests that often drowned out the candidates.

In the final week before the race, almost $5 million was spent on television advertising nationally. Even though several Supreme Court races were uncontested, more money was spent on advertising than in 2006, according to data compiled by the Brennan Center for Justice.

Reform initiatives like voter education, public financing, and conduct committees helped curb the spiral of nasty politics in some states. And in two heartland counties, in Kansas and Missouri, voters responded to rising judicial election pressures by choosing merit selection systems over contested elections. Voters in Alabama amended their constitution to allow Shelby County to fill judicial vacancies with merit selection.

The vagaries of election campaigns continue to produce results that promote politics above the selection of quality judges, said groups seeking to protect courts from special interests and political agendas. For example, in Texas, 22 of 26 experienced GOP circuit court judges were swept off the bench on a straight-ticket Democratic vote in Harris County.

"There is too much special interest money and influence in state court elections," said retired U.S. Supreme Court Justice Sandra Day O’Connor. "It endangers the public’s faith in the justice system.  If courts are going to stay impartial, leaders in every state need to get moving on reforms."

The 2008 cycle sets the stage for more meltdown contests in 2009-10, when candidates from 18 states are scheduled to contest 32 Supreme Court seats (including multiple races in 10 states—Alabama, Michigan, Minnesota, Nevada, North Dakota, Ohio, Oregon, Texas, Washington, and Wisconsin).   In Wisconsin, which has seen two straight bruising elections, Chief Justice Shirley Abrahamson is expected to face a strong effort to oust her from the bench next spring. Pennsylvania also could see a hotly contested high court contest next fall. 

One of the most intriguing developments of 2008 was that special-interest support itself became a core issue in judicial elections. While expensive advertising helped candidates get their message out, it came with a cost.

In Michigan, Chief Justice Cliff Taylor was defeated by little known challenger Diane Hathaway after Democratic ads ran ads accusing him of being a "good soldier" for business interests. Justice Taylor’s side, with help from the state Chamber of Commerce and Republican Party, heavily outspent his challenger.

Mississippi Chief Justice Jim Smith also was voted off the bench amid criticisms that he tilted too much toward business litigants. West Virginia Chief Justice Elliott Maynard was defeated in a spring primary, after his close ties to a mining executive were cited in a mocking ad that parodied "Lifestyles of the Rich and Famous."

On the other end, an effort in Texas to unseat three Republican justices failed, despite a $1 million ad campaign from the state Democratic Party. Critics accused plaintiffs’ lawyers of surreptitiously funding that effort.

By far, the nastiest fall campaign occurred in Michigan. Democratic party ads accused Justice Taylor of sleeping on the job—which he calls a lie—and kow-towing to big business. In turn, third-party ads supporting the Chief Justice accused Hathaway of being soft on terrorists and sexual predators.

The Michigan contest closely resembled this spring’s contest in Wisconsin, where incumbent Louis Butler was unseated after an ad falsely suggested he had freed a rapist from prison on a loophole.

The most expensive election occurred in Alabama, where opponents Greg Shaw and Deborah Bell Paseur raised a total of $3.8 million. A Virginia-based group, the Center for Individual Freedom, spent more than $815,700 on ads favoring Shaw, according to James Sample at the the Brennan Center for Justice.

Money also took center stage in Greene County, Missouri. More than $300,000—much of it gathered secretly by an out-of-town group—funded an ad blitz featuring Attorney General John Ashcroft that tried to halt a measure to scrap contested elections for local trial judges.

Greene County voters ignored the ads and approved a system of merit selection appointments and retention elections. In neighboring Kansas, Johnson County voters also supported merit selection, rejecting a proposal that would have scrapped their appointive system and switched to contested elections for judges.

It’s also worth noting what wasn’t on the ballot. Unlike in 2006, there were no statewide referenda aimed at weakening courts or compromising them as fair, impartial arbiters. The Jail 4 Judges initiative, overwhelmingly defeated in South Dakota, never reappeared in 2008. And attempts in Colorado to resurrect a term-limits measure for judges failed to get enough signatures to qualify for the ballot.

"Americans are growing wary of political tampering with justice," said Bert Brandenburg, Justice at Stake’s executive director. "For two election cycles in a row, they have gone to the polls to defeat every special-interest attempt they’ve seen to inject more politics into our courts of law."

Overview

Twenty-six seats were contested in 15 states in 2008. Campaign finance reports, through final pre-election disclosures in the fall, showed that candidates had raised $29.4 million—almost identical to the figure raised at the same point in 2006. Estimated spending on TV ads, including those by third-party groups, totaled $17 million—besting the 2006 mark, thanks to almost $5 million raised in the final week before the election.

According to James Sample of the Brennan Center for Justice, four of the five biggest spenders on television advertising were groups other than candidates. Wisconsin Manufacturers and Commerce, a statewide business group, spent $1,297,000 on TV ads to defeat Justice Louis Butler, far more than challenger Michael Gableman.

Similarly, the Michigan Chamber of Commerce and Republican Party spent heavily on ads for Chief Justice Taylor. One GOP ad showed an Arab-American with an assault rifle, alleging that Taylor’s opponent gave him probation, adding, "Probation for terrorist sympathizers? We’re at war with terrorists!"

Michigan Democratic Party ads were equally harsh, showing an actor depicting Taylor nodding off on the bench—a charge that was never substantiated—and alleging that he voted to prevent women from suing employers over workplace harassment and sex assaults.

The ongoing orgy of negative advertising caused Justice at Stake to label the Michigan Supreme Court election the nation’s dirtiest in the fall.

In several instances, candidates were forced to defend their ties to interest groups with business before the courts.

Candidates in two states—Menis Ketchum in West Virginia and Paseur in Alabama—televised the same boast, that they "can’t be bought." Paseur attacked her Republican opponent for receiving much of his money from a PAC that she said was linked to Exxon-Mobil.

Ads in Michigan, Texas and West Virginia also repeated the theme that incumbents were too deferential to the business interests that financed their elections.

But groups in Texas and Alabama fired back, saying that plaintiffs’ lawyers were funneling huge amounts of money through state Democratic Party committees.

One factor retarding overall expenses was that incumbent justices faced no challenges in Georgia and Illinois, two states that had set spending records in recent year.

In Ohio, two justices faced underfunded opposition, while the Building Industry Association of Washington failed to back any court candidates this year, greatly cutting campaign expenditures in that state.

But even in Ohio, the Partnership for Ohio’s Future, an arm of the state Chamber of Commerce spent more on TV ads than any official campaign. Other major third-party efforts included advertising in Alabama by the Virginia-based Center for Individual Freedom, the Texas Democratic Party, which ran ads on behalf of three Democratic candidates, and ads in Mississippi by the business group Mississippians for Economic Progress, and by the Virginia-based Law Enforcement Alliance of America.

Finally, there were worrying signs that the runaway spending on state Supreme Court elections continued to trickle down to more local judicial races. For example, in Los Angeles, combined spending on two of the five Superior Court races exceeded $500,000, according to news reports.

Solutions on the Ground

In several states, reform measures helped dampen special-interest pressure on this year's judicial elections:

• Public Financing: In North Carolina, which adopted public financing of judicial elections in 2002, eleven out of twelve candidates expressed their confidence this year by opting into the system. As of the last available reports, $467,250 in public financing had been given to Supreme Court candidates, and $1,440,000 in court of appeals races. A total of $98,389 in "rescue money" was issued to candidates who faced extra Democratic party advertising. (The Supreme Court this week refused to hear a legal challenge to the rescue funds provision.) In the last year before the system was adopted, 73% of all campaign contributions to state supreme court candidates came from attorneys and special interest groups. In 2004, that share fell to 14 percent.
• Voter Guides: In 24 states—AL, AR, CA, FL, GA, ID, IL, IA, KS, LA MD, MA, MI, MN, MS, NM, NY, NC, OH, OK, OR, TX, WI & WY—the League of Women Voters and other organizations published nonpartisan voter guides designed to increase turnout in judicial elections to make it harder for anyone interest group to sway a court contest. Justice at Stake underwrote public service announcement campaigns in Alabama, Michigan, Mississippi, Ohio and Texas. State chapters of the League of Women Voters also held 50 community forums concerning judicial elections and judicial campaign debates in 30 states.
• Campaign Conduct Committees: In several states, citizen campaign conduct committees have been created by respected bipartisan coalitions. This year in Alabama, a state committee helped cool tempers when it met with both candidates after negative exchanges began to sour the campaign. In Mississippi, many stations pulled an ad suggesting that Justice Oliver Diaz had "voted for" killers and rapists after a conduct committee labeled it as false.

By contrast, in Michigan, where no committee existed, there was little in the way of bipartisan institutional pressure that could be applied to the candidates and interest groups to tone down their candidate behavior.

"In an era of contentious court campaigns, oversight committees deliver critical information to candidates and voters about the proper conduct of a judicial race," said Mary McQueen president of the Williamsburg-based National Center for State Courts.  "They remind us all that judicial campaigns are different, because the role of a judge is different from that of legislators or governors and other executive branch officials."

• Merit Selection: In the states that have adopted merit selection of supreme court justices, Justice at Stake received no reports of big money, nasty TV ads, or special-interest pressure on judges.

Also, the local elections that endorsed merit selection in Greene County, Missouri, and Johnson County, Kansas, became a symbolically important test of an increasingly contentious issue. Groups in several states, supported by Wall Street Journal editorials and a group funded by the National Association of Manufacturers, have bitterly attacked merit selection systems as anti-democratic. In three separate counties in the Midwest and South, voters rejected these criticisms and opted for merit selection to help keep special interest politics out of the courts.