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.”
by Liz Seaton, Acting Executive Director, Justice at Stake. Justice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial.
With its new “Justice at Risk” report, the American Constitution Society documents a correlation between big judicial election spending by U.S. businesses and favorable rulings from elected state courts. The report raises questions that are familiar, and they are troubling.
The American public insists that courts be impartial, with no special favors for campaign spenders, so that everyone gets a fair day in court. But confidence in the impartiality of our courts has eroded as business and special interest spending on judicial elections soared in the last decade.
“Justice at Risk” offers a statistical analysis that updates what we know about business interest donations to state supreme court candidates and judicial decisions that followed, specifically in the years since Citizens United:
- “The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”
- If a justice’s campaign gets half of its contributions from business groups, then the justice would be expected to favor business interests by voting their way almost two-thirds of the time.
- The empirical relationship identified in the study between campaign contributions and justices’ voting exists “only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems,” when a justice stands in a yes-or-no contest with no opponent.
- For justices affiliated with the Democratic Party, the relationship between business contributions and voting is stronger than for justices affiliated with the GOP.
These results add to the debate about the critical need for reforms to keep the influence of campaign cash out of the courtroom.
The federal appeals court judge under an ethics investigation for allegedly making racist comments at a Federalist Society event has been building a rather tawdry track record on and off the bench. The ethics complaint lodged by civil rights groups against Judge Edith H. Jones of the U.S. Court of Appeals for Fifth Circuit has become somewhat high-profile thanks to coverage from The New York Times.
But Nicole Flatow and Ian Millhiser of ThinkProgress add to the story. First Flatow notes that Jones, appointed to the bench by President Ronald Reagan, “is known for her hostile and discriminatory comments.” Flatow continues that Jones “erupted at one of her fellow judges during oral argument in 2011, and told him to ‘shut up’ while asking him to leave the courtroom.” Flatow also notes Jones (pictured) wrote an opinion arguing for dismissal of a woman’s sexual harassment lawsuit. It was not enough that the woman’s male co-workers repeatedly groped and grabbed her and plied her locker with pornographic pictures. The woman’s supervisor dismissed her complaints and Judge Jones argued for the same thing to be done. Fortunately her opinion was in dissent. Nonetheless that dissent suggests Jones harbors an incredibly callous or cynical view of sexual harassment charges.
The Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens and Mexican Capital Legal Assistance Program lodged the ethics complaint against Jones arguing that her comments at a Federalist Society event at the University of Pennsylvania School of Law violated the Judicial Conduct & Disability Act. That code of conduct, in part, requires judges to remain impartial.
The event was not recorded, according to the law school, but the complaint includes affidavits from members of the gathering. The Times’ Ethan Bronner reports that the groups’ complaint says Jones declared, “racial groups like African-Americans and Hispanics are predisposed to crime.”
When prodded on that comment by a lawyer in the audience, Jones allegedly added that blacks and Latinos “get involved in more violent crime.”
Jones, the complaint alleges, expressed incredibly base comments about death penalty defenses. Most of them, such as claims of racism, are “red herrings,” The Times reports. According to the newspaper witnesses added that the judge maintained “Mexicans would prefer to be on death row in the United States than in prison in Mexico.”
Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Timesshould resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”
The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”
Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.
This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog.
Leave it to The Wall Street Journal’s editorial board to attack what may be the most rational approach in this country for selecting judges in favor of an approach that leaves the judiciary vulnerable to the same kind of unspoken quid pro quo influence that plagues the political branches of government.
Missouri has long had one of the one of the best non-partisan judicial appointment plans in the country. Under the plan, which has since been adopted at least partially by 34 states, a non-partisan commission (usually with close ties to the state bar) reviews candidates for a judicial vacancy, and produces a list of people from which the governor can make an appointment. If the governor doesn’t make an appointment, the selection committee can put a judge on the bench itself. The only popular “check” on the process is a retention election that is typically held once the judge has completed one year of service.
The main criticism of this method of selecting judges is that it gives state bar associations, and plaintiff’s lawyers in particular, too much power in the nominations process, while voters effectively have no input on the people who will take the bench. This argument has been the clarion call of the Journal, and it was brought up again in this recent editorial, with the outrageous claim that Pennsylvania’s recent moves to become the latest state to adopt the Missouri Plan amounted to “the political class … using a political scandal to grab more power.”
Predictably, the Journal glossed over the nature of the scandal prompting Pennsylvania to consider switching from its current system of elections for judges – one of the biggest in the state’s history. It resulted in the resignation of state Supreme Court Justice Joan Orie Melvin, after she was found guilty of using state employees to run her reelection campaign. One of her sisters, a former state Senator, is already serving prison time after pleading guilty to using state employees to work on her own and Melvin’s campaigns, then forging documents to cover it up.