Not once in more than 40 years has an incumbent Wisconsin Supreme Court justice lost an election—not, that is, until this week, when a business-backed circuit judge narrowly defeated the first African-American to serve on the state's highest court.
But the victory of Michael Gableman over Louis Butler was important not only because the former district attorney is likely to nudge the court to the right. It stood out because the race came with such cost, partisanship, and confrontation—hardball trends that are expected to play out in judicial races nationwide. At an estimated $5 million, the cost of the Wisconsin race set records, and its campaign ads—largely sponsored by outside groups—were so negative and in some cases so misleading that they were criticized by a state watchdog group. One of Gableman's ads falsely implied that Butler had gotten out of jail a convicted rapist who then committed a second sexual assault. (In fact, the second assault occurred after the man served his full sentence.) Another ad by the pro-Butler teachers union accused Gableman of sentencing child sex offenders far below the maximum, but it used the example of an offender who received a higher sentence than the one the prosecutor recommended.
The tactics in the Wisconsin race exemplify a broader shift in judicial elections nationwide. There are nearly 40 other state Supreme Court races ahead this year, some of which are already gaining attention—particularly in states where the outcome could tilt the political balance of the court. The Mississippi high court has four seats up for election; Washington has three; and in West Virginia, where half of the five-member Supreme Court has come under scrutiny over connections to a top businessman and campaign contributor, two seats are contested.
Though costly and contested judicial elections have long been common in states like Ohio and Illinois, the battleground has now spread to places more commonly known for more civil judicial politics. "Groups that had previously focused on trying to influence lawmaking," says Mike McCabe, executive director of Wisconsin Democracy Campaign, "now want to impact how laws are interpreted and enforced."
The change stems partly from the growth of tort reform in state electoral politics. Realizing that the courts could have the final say in tort reform laws, both business and plaintiffs' lawyers are now putting more money into supporting friendly judicial candidates. Their efforts were aided by a 2002 U.S. Supreme Court ruling that held that Minnesota's rule barring judicial candidates from discussing political issues violated their First Amendment rights. Judicial candidates were now free to take political stances on hot-button issues like abortion, and the result, some observers say, is more partisan judicial contests.
Indeed, the median amount raised in judicial campaigns in 2006 was $243,910, up from $201,623 six years before. In 2006, five of the 10 states with private financing set spending records, including Alabama, which raised $13.4 million in five state Supreme Court races, according to the Brennan Center for Justice. Outside groups have added to these amounts, spending 2½ times more on television ads in the 2004 and 2006 cycles than in the previous two. And increasingly, this money is coming from the business community, which represented 44 percent of all campaign money—twice the percentage of donations from lawyers, according to the Brennan Center.
It's not only judicial elections that are coming under scrutiny this year. In a handful of states, merit-based selection panels are facing questions of political manipulation and attracting the interest of groups like the Federalist Society. Under the merit system, various panels, composed of governors' appointees and lawyers, usually appointed by the state bar, nominate candidates for appointment by the governor.
The center of the action for merit-based selection is Missouri, where there are dueling proposals to overhaul the state's seven-member panel. The key criticism is that the lawyer-dominated panel is too secretive and dominated by liberal-leaning bar members. "The way it's worked out in Missouri, there is an enormous amount of political pressure," says Jonathan Bunch, executive director of Better Courts for Missouri, which is pushing to increase the number of members and limit the number of lawyers on the panel, as well as make the process more public.
Opponents, however, say these proposals would shift too much power into the hands of the governor without sufficient checks and balances. "It's really not merit selection, it's really just partisanship," says Seth Andersen, executive vice president of the American Judicature Society.
Back in Wisconsin, however, the question of reform centers on what role the rising costs of elections have on the judicial system. Special interests added $4 million to the $1 million that Gableman and Butler spent on the Supreme Court race. Business and conservative groups backed Gableman, while liberal groups and the teachers union aided Butler. Business groups said their increasing interest in the Supreme Court stemmed from the changing tone of the court, notably some of Butler's rulings they perceived as antibusiness. Many singled out a 2005 opinion that allowed a class action lawsuit against the paint industry to go forward even though the plaintiff could not prove which company caused the lead poisoning. (Ultimately, however, the plaintiff did not win.)
Liberal groups similarly saw the court in balance. That's why this year's race included heavy spending from the teachers union, which jumped in for Butler after seeing business outspend the liberal groups and win in last year's Supreme Court race.
Yet the big spending, at least in Wisconsin, seems likely to continue. A bill creating public financing for judicial elections passed the Democratic Senate in February but was not brought to a vote in the Republican-controlled House. And the negative ads may be here to stay. In both cases, the results for the judiciary could be harsh, critics say. "These outside ads kind of bloody both candidates regardless of who wins," says Jon Wilcox, a former Wisconsin Supreme Court justice. "It's very corrosive to the court system itself."