TheWashington Post recently published a "Letter to the Editor" from ACS President Caroline Fredrickson, which touched on the pernicious influence of campaign contributions on state courts.
In response to a Post article citing efforts by the U.S. Chamber of Commerce to push its agenda through various state courts (perhaps having realized federal courts have already been conquered), Fredrickson cited ACS’s 2013 report, Justice at Risk, which provides an empirical analysis of campaign contributions and their impact state judicial decisions. As Fredrickson noted, the data shows that “the more campaign contributions from business interests that justices receive, the more likely they are to side with business litigants.”
Since its release in June, Justice at Risk has been routinely cited by media outlets across the nation, including: The Atlantic, Mother Jones, The Des Moines Register, The Miami Herald and many others. As former Montana Supreme Court Justice James C. Nelson phrased it in the pages of The Missoulian, Justice at Risk is an “objective, non-partisan report . . . [that] provides critical data on the effect of campaign expenditures on judicial behavior from 2010-2012.”
Cohen, a contributing editor at The Atlantic and legal analyst for “60 Minutes,” asked Willett to respond to Justice at Risk, a report issued this summer by ACS on campaign contributions to state Supreme Court justices and state court decision-making. In part the study found a significant relationship between business group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters. Indeed the report found that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time. Justice at Risk also noted that because of recent opinions by the U.S. Supreme Court there is more and more money flowing into judicial campaigns via business interests.
Cohen notes that Willett “graciously” agreed to read the report and then respond to questions about “judicial elections and the role campaign contributions play in them.” (Last year for The Atlantic, Cohen covered the Texas system for electing judges, noting Willett’s campaign-style website.) Cohen describes Willett’s comments about Justice at Risk as “both candid and frightening.”
Willett provides a fairly lengthy response to Cohen, conceding that he strongly understands the “suspicion that donations drive decisions. That skepticism siphons public confidence, and that’s toxic to the idea of an impartial, independent judiciary. I can only speak for myself and say that it flatly doesn’t happen.”
Willett adds that if the Texas Supreme Court issues opinions that are business friendly it is more likely the fault of Texas lawmakers. “My court doesn’t put a finger on the scale to ensure that preferred groups or causes win, but the Legislature sure does. Lawmakers are fond of lawmaking, and the business lobby exerts significant influence on state policymaking.”
Part of Cohen’s response:
The justice is saying that he holds his nose while he campaigns for votes by pledging to be "conservative" and by placing the endorsements of men like James Dobson and Foster Friess (and current Texas Attorney General Greg Abbott) on prominent places on his website. (How would you feel, as an atheist, with Justice Willett on your case?) And he is saying that the decidedly pro-business Texas legislature is more to blame than the decidedly pro-business Supreme Court for the decidedly pro-business bent of Texas law. They have reaped what they have sown.
This week retired U.S. Supreme Court Justice Sandra Day O’Connor said in a speech that the need for judges to raise money to win contested elections presents one of the greatest threats to a fair and impartial judiciary, The Atlanta Journal-Constitutionreported. The validity of Justice O’Connor’s concerns is supported by the data and analysis in Justice at Risk, a report recently published by ACS on campaign contributions to state supreme court justices and state court decision making.
In the speech, Justice O’Connor said:
Judicial elections powered by money and special interests create the impression, rightly or wrongly, that judges are accountable to money and special interests, not the law[.] … Our judges should never be beholden to any constituency.
In my view, that need to raise money to compete in those elections presents one of the greatest threats to fair courts and that threat is increasing[.]
In Justice at Risk, Professor Joanna Shepherd of Emory University School of Law uses sophisticated empirical research techniques to analyze 2,345 business-related state supreme court published opinions from all 50 states and over 200,000 contributions to sitting justices and concludes that:
There is a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.;
The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court;
A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time; and
The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan election systems; there is no statistically significant relationship between money and voting in retention election systems.
More than 90 percent of the legal cases in the United States are handled by state courts, and 89 percent of the states require judges to face the voters in some type of election. Dozens of states require their supreme court justices to campaign and raise many in just the sort of contested elections (whether partisan or nonpartisan) that both Justice O’Connor and Justice at Risk suggest can be so problematic.
Justice O’Connor supports merit selection systems, in which bipartisan nominating commissions to put slates of candidates to the governor, who picks from that list. Voters then periodically vote on whether to retain these judges (without opposition from another candidate). As noted above, In Justice at Risk, Professor Shepherd found that there is no statistical relationship between contribution in retention elections and decisions by justices.
Lawmakers may help push equality measures for LGBT persons, but at the end of the day if the state and federal courts are made up of rightwing jurists and those beholden to corporate interests, advancements toward equality will likely be an ongoing arduous and fitful slog.
The health and safety of the LGBT community is “inextricably tied to the health and safety and vigor of our court systems, both federal and state,” said Justice at Stake’s Praveen Fernandes, at an Aug. 24 panel discussion at the National LGBT Bar Association’s 2012 Lavender Law gathering in Washington, D.C. Fernandes, the Director of Federal Affairs and Diversity Initiatives at Justice at Stake, noted that many people concentrate on the role federal courts occupy in legal battles, but that the “vast majority” of law is determined at the state level.
And on the state level there is an increasing challenge to ensure that judges are independent of special interests. Thirty-nine states elect judges, and an increasing amount of money is flowing into those elections to elect judges inclined to advance corporate interests at the cost to individual rights. Several of the panelists participating in the “Defending the Courts: Why the LGBT Community Should be Particularly Concerned about the Strength and Independence of the Bench,” also noted that judges who uphold or bolster rights for the LGBT community are vulnerable to well-funded efforts to remove them from the bench.
Judge Mary Celeste of the Denver County Court highlighted one of the more infamous efforts to punish judges who supported equality.
“We are talking about defending people who are supportive of LGBT issues. Now is anyone here not aware of what happened in Iowa,” Celeste said, referring to the successful effort to oust three Iowa Supreme Court justices who were involved in a 2009 state court ruling that supported same-sex marriages.
The effort to oust the three Iowa Supreme Court justices was spearheaded by the American Family Association, a Christian lobbying group, and attracted $948.355 from out-of-state groups. In late 2010 former Arkansas Governor and Republican presidential hopeful Mike Huckabee applauded the effort to remove the Iowa Supreme Court justices, claiming that Iowans were “sick of one branch of government thinking it is more powerful than the other two put together,” the Iowa Independent reported.
Spending on judicial elections has skyrocketed in the last 15 years, with special interest money flooding campaign coffers. Until recently, judicial elections were almost always low-key affairs that did not require large sums of campaign cash. State supreme court candidates since 2000 have received $247 million in campaign funds. A recent report from the Center for American Progress looked at some of the states which have seen the most campaign cash in judicial elections, in an effort to assess how campaign contributions could be shaping the law. The report describes how certain special interest groups wanted the law interpreted in a certain way, and then worked to elect judges that wrote those changes into law. “In courtrooms across our country, big corporations and other special interests are tilting the playing field in their favor,” the report states.
The U.S. Chamber of Commerce and corporate-funded groups that support "tort reform" began to pour money into judicial races, after they perceived some state courts as beholden to campaign donations from trial attorneys, many of whom made money suing corporations. The pro-corporate groups had a good track record early on. These groups now dominate judicial campaign expenditures in the states that have seen the most money – Alabama, Texas, Michigan, Ohio, and others. Contributions from Alabama's Chamber of Commerce accounted for 40 percent of all campaign contributions in the most recent high court election in the state, according to data collected by the National Institute on Money in State Politics.