Judicial elections turn expensive, polarized, and nasty
The rising cost of judicial elections is being fueled, in large part, by the national fight over "tort reform." Trial lawyers and pro-business groups, who want to limit the size of jury verdicts, are consistently the largest judicial campaign contributors. In the last several years, business groups, led by the U.S. Chamber of Commerce, have funneled tens of millions of dollars into key races in states known for high jury verdicts in product-liability cases, such as Alabama and Illinois, successfully unseating a number of judges. In 2004, the chamber said, it won 12 of 13 targeted races. And in Alabama, the one-time majority Democratic high court now has an 8-1 Republican, and business-friendly, majority.
The same interests should be involved this year, and may spread to other states. Weeks before the primary in Oregon—where the high court recently upheld a $79.5 million verdict against Philip Morris—one candidate received $150,000 from a group founded by the National Association of Manufacturers to limit jury verdicts. (His opponent has accepted smaller contributions from lawyers and the Gay and Lesbian Victory Fund, among others.) Pro-business groups also heavily supported the winners in Alabama's primary, all incumbents. The American Taxpayers Alliance has, in the past, received funding from the chamber.
Much of the cacophony in Alabama, however, was over social issues. A group of challengers, some of them protégés of former Justice Roy Moore, who was removed from the court for refusing to take down a Ten Commandments monument, argued that state courts should ignore Supreme Court decisions that they thought were unconstitutional. Since 2002, when the Supreme Court in Minnesota Republican Party v. White struck down some restrictions on what judicial candidates may say, pressure has grown for prospective justices to take positions on social issues. Groups now send questionnaires to judges asking their views on abortion, gay rights, and school prayer, among other issues. To supporters, asking candidates to explain their beliefs is a matter of accountability. "All judges have values, all judges have points of view," says James Bopp, the attorney who represented the GOP in White, and who has also represented the American Taxpayers Alliance. "The question is, are the voters going to know them or not?" Bopp, who says candidates should not promise a particular outcome in a specific case, is challenging rules in several other states that prohibit candidates from answering questionnaires, endorsing other political candidates, and soliciting campaign contributions, and has won in Kentucky, North Dakota, and Alaska. Other suits are pending in Kansas and Pennsylvania. "To pretend that a blind and ignorant electorate somehow keeps the judiciary's reputation aboveboard is simply foolishness," says Kent Ostrander, director of the Family Foundation in Kentucky.
Nor does big spending necessarily trouble everyone. "If you can't raise money to get your message out, then you don't have a message," says Bopp. Justice Terrence O'Donnell, who is running for re-election in Ohio, says the state's contribution limits prevent judges from being beholden to donors. "What does a $5,000 contribution do in a state the size of Ohio? Probably very little," he says. (His opponent, William O'Neill, has refused to accept any contributions.)
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