Campaign spending in state judicial elections has apparently reached a new high in 2014. And, if past is prologue, the likely result will be harder times ahead for criminal defendants and suspects.
The trends are worrisome for the goal of an independent judiciary, but nothing suggests a likely reversal. Free-speech rulings make it difficult to limit or regulate spending in judicial elections. In addition, divisions on legal issues are now more than ever sharply drawn along partisan lines easy to convey to voters in 30- or 60-second television spots. And, try as they might, judicial reformers are making little progress in moving away from contested elections for judgeships at the state level.
Three liberal groups have thrown the spotlight on judicial elections in well documented reports issued within the past two weeks. In the first of the reports, distributed by the American Constitution Society (ACS), researchers at Emory University School of Law examined the impact of what they called “the explosion in television attack advertisements in state supreme court elections” over the past two decades.
The careful statistical analysis in the report, entitled Skewed Justice, confirms the common-sense supposition: courts that have gone through “soft on crime” campaigns turn out to be “less likely to rule in favor of defendants in criminal appeals.” An increase in television advertising, the report finds, can result in an 8 percent decrease in rulings favoring criminal defendants on appeal. And states that removed prohibitions against corporate or union spending in the wake of the Supreme Court’s Citizens United decision saw a 7 percent decrease in pro-defense rulings on appeal.
In the second report, the Brennan Center for Justice and the advocacy group Justice at Stake highlighted what they called “a surge of last-minute outside spending” in supreme court elections in five states: Illinois, Michigan, Montana, North Carolina, and Ohio. Based on required filings with the Federal Communications Commission (FCC), the report found $1 million in TV ad buys as the final week of campaigning in those contests began. Overall, the report found $12 million in judicial campaign spending in 10 states since January.
Those sums may seem trivial compared to the amounts being spent in congressional races — for example, the record $100 million in spending by the two opponents in North Carolina’s hotly contested Senate race. But the interest groups financing judicial election campaigns know that a little money goes a long way in those races. Voters get little information about judicial elections apart from the paid advertising, and incumbent judges face ethical constraints in raising the money needed to respond.
Law-and-order is the dominant theme in the advertising in state supreme court elections. In Ohio, a group called American Freedom Builders made a $375,000 ad buy for spots that included one praising incumbent Justice Judith French for upholding the death penalty and tough criminal sentences. In Michigan, the Virginia-based Center for Individual Freedom spent $146,000 for advertising that praised two incumbent Republican justices for “throwing the books at violent predators.”
History shows that the law-and-order attack ads work. In California, three state supreme court justices, including Chief Justice Rose Bird, were ousted in 1986 after a campaign focused on the court’s repeated reversals in death penalty cases. A decade later, Tennessee Supreme Court Justice Penny White fell victim in 1996 to a similar campaign.
The well-heeled groups behind this increased spending are not primarily interested in law enforcement and public safety. Business interests hope to win favor from state supreme courts on civil litigation, workers’ rights, consumer protection, and other regulatory issues. Republican Party organizations are spending money conscious of the partisan stakes in redistricting cases that may wind up before state supreme courts.
Those issues do not resonate with voters as much as ads that pillory justices for ruling in favor of criminal defendants. The “sophisticated” special-interest groups financing the judicial campaigns “understand that ‘soft on crime’ attack ads are often the best means of removing from office justices they oppose,” the report states.
Concern about the political impact of judicial elections extends to lower courts as well. At the Supreme Court, Justice Sonia Sotomayor suggested in November 2013 that Alabama’s system of partisan elections helped explain the unusual number of cases in which judges imposed the death penalty after juries had voted for imprisonment instead.
Judicial reformers have worried about the political threats to judicial independence at least since the 1930s, but they are up against an ingrained public belief in elections. One reform widely adopted is the so-called Missouri plan: judges are appointed after a merit selection process and then run in yes/no “retention” elections. That system did not protect the California or Tennessee justices from partisan attack and defeat.
Another reform, nonpartisan elections, is not necessarily effective either. The state supreme court contests in North Carolina are technically nonpartisan, but the opposing candidates are easily identifiable as Republicans or Democrats. For several years, North Carolina used public financing to try to immunize judges from political pressures, but the Republican-controlled legislature abolished that system in 2013.
Judicial politics may be dirty business, but handwringing will make it no cleaner. Those groups that want to strengthen the independence of the judiciary have no choice but to respond in kind to the campaign tactics being used by those groups that want to bend judges to their will.
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