RE: [MLUG - DISCUSSION] [POLITICS] Judges for Sale

["Hargus, Diana" <EMAIL:PROTECTED>]

Mike,

What values might those be?  The ones based on "Christian" (or insert
religion here) morals? Or perhaps the ones the lawyers push?  Or, I
don't know, ones based on personal responsibility?   Just curious is
all, not meaning to start any issues here, as I have to agree with you
that there is a definite need for some value system to be in place.

Diana 

> -----Original Message-----
> From: EMAIL:PROTECTED [mailto:discussion-
> EMAIL:PROTECTED] On Behalf Of Mike Miller
> Sent: Wednesday, April 04, 2007 2:31 PM
> To: MLUG discussion
> Subject: [MLUG - DISCUSSION] [POLITICS] Judges for Sale
> 
> The long article below is from December, but I just ran across it
> today.
> Quote:
> 
>     In 2002, Justice-at-Stake, a judicial reform group, surveyed 2,428
>     state court judges around the country. More than half of them
> candidly
>     conceded that campaign donations influenced their decisions at
> least
>     some of the time.
> 
> This is very bad for all of us.  How can they think it is OK to be
> influenced by campaign contributions?  (They aren't quite saying that,
> but
> the fact that half of them would admit to such influence implies that
> they
> are not especially ashamed or afraid of being found out.)
> 
> We really need to get our values back!
> 
> Mike
> 
>
-----------------------------------------------------------------------
> ---
> 
> 
> http://select.nytimes.com/2006/12/12/opinion/13talkingpoints.html
> 
> N.Y. Times
> December 12, 2006
> 
> Talking Points
> 
> Judges for Sale
> 
> By DOROTHY SAMUELS
> 
> It was bound to happen sooner or later. Special interests have long
> targeted candidates for executive offices, like president and
governor,
> and legislative offices, like Congress and state legislatures. It was
> just
> a matter of time before well-heeled business and other interests would
> expand their influence-peddling efforts, and begin pouring large
> amounts
> of money into previously sleepy judicial campaigns.
> 
> Several years ago, it started happening -- first in just a few states,
> then spreading to a lot more. The unwholesome result is the dawn of a
> new
> era of raucous million dollar-plus campaigns for key state judgeships
> that
> is forcing more and more would-be jurists to bond with special
interest
> backers, and invest in cheesy 15- and 30-second TV spots, if they want
> to
> get on the bench, and stay there.
> 
> As spending by special interests in state judicial elections soars
into
> the stratosphere, something very precious to Americans is being
> grievously
> compromised. And in certain pockets of the country, it seems well on
> the
> way to being lost altogether. That precious something is the integrity
> and
> impartiality of the nation's courts.
> 
> Justice, the saying goes, is blind -- symbolized in courthouses across
> the
> country by statues of Lady Justice, blindfolded so she can rule
without
> fear or favor. But increasingly, there is one thing Justice in America
> can
> see quite clearly -- who is giving her money. A modern rendition of
> Lady
> Justice would show her with one arm extended, reaching for large
> campaign
> contributions. Those contributions -- from insurance companies, big
> business, tobacco companies, the building and health care industries,
> unions, trial lawyers, the religious right, and other special
interests
> --
> do more than create a bad appearance.  They seem to be having an
effect
> on
> the decisions courts are making.
> 
> If we want to preserve an independent and impartial judiciary --
> something
> that is a shining part of what America stands for, and an
indispensable
> guardian of American rights -- getting rid of the corrupting influence
> of
> money sloshing around in judicial campaigns is now a matter of genuine
> urgency.
> 
> 
> I. Bad Alchemy: Turning Judges Into Politicians
> 
> It is no longer shocking that special interests have proved adept at
> corrupting Congress and state legislatures by using humongous campaign
> contributions to win government favors. Now, though, these same
special
> interests are turning their attention, wallets, and political
firepower
> to
> buying up state judges, calculating -- correctly, sad to say -- that
> pouring millions into helping to seat judges likely to side with them
> in
> important cases can be a darn good investment.
> 
> Just how good an investment was driven home last month, when the
United
> States Supreme Court declined, without comment, to review last year's
> 4-to-2 Illinois Supreme Court decision that threw out, on specious
> legal
> grounds, a $10.1 billion award against Philip Morris U.S.A. for
> enticing
> consumers to buy "light" cigarettes on a fraudulent promise they were
> lower in tar and nicotine.
> 
> Predictably, critics of big consumer class actions -- and of the
> plaintiff-friendly Illinois jurisdiction of Madison County in
> particular
> -- joined the world's largest cigarette company in applauding the high
> court's pass.
> 
> But some victory. The state Supreme Court justice who cast the
deciding
> vote in the case, a former lower court judge named Lloyd Karmeier,
> received million of dollars in campaign support in 2004 that Philip
> Morris
> and other tobacco interests tendered for the very purpose of trying to
> reverse the enormous "light" cigarette award.  They got what they paid
> for.
> 
> Judicial ethics rules exempt campaign contributions from their
> otherwise
> strict approach of requiring judges to disqualify themselves whenever
> their impartiality might reasonably be questioned. But given the
> history,
> Justice Karmeier's failure to voluntarily recuse himself was a
> disgrace.
> 
> The Philip Morris case, it should be noted, was not the first time
that
> Justice Karmeier, a Republican, ruled for big contributors in a
> high-profile case.
> 
> In 2004, fresh from the record-setting campaign brawl in which he and
> his
> Democratic opponent raised in the vicinity of $9.3 million in
political
> contributions -- an amount surpassing the fundraising totals in 18
U.S.
> Senate races that year -- Justice Karmeier voted to reverse a breach
of
> contract verdict of more than $450 million against State Farm
> Automobile
> Insurance Company. Legally, the result may not have been unreasonable,
> but
> it nevertheless carried a stench. While the case was pending, State
> Farm
> employees, lawyers, and others affiliated with the insurance company
> made
> $350,000 in direct contributions to Justice Karmeier's all-but-
> bottomless
> election war chest. Groups closely tied to State Farm gave over $1
> million
> more.
> 
> Mr. Karmeier is hardly alone.
> 
> Examples abound of state judges rendering rulings favorable to their
> large
> contributors in significant cases. Indeed, a study last fall of the
> Ohio
> Supreme Court by Adam Liptak, Janet Roberts, and Mona Houck of The New
> York Times found that sitting on cases after receiving campaign
> contributions from the parties involved, or from groups filing support
> briefs, is routine. In the 215 Ohio cases with the most glaring
> potential
> for conflicts of interest over a 12-year period, state justices
recused
> themselves just nine times. Ohio justices voted in favor of their
> contributors 70 percent of the time.
> 
> In 2002, Justice-at-Stake, a judicial reform group, surveyed 2,428
> state
> court judges around the country. More than half of them candidly
> conceded
> that campaign donations influenced their decisions at least some of
the
> time.
> 
> With business interests -- including manufacturers of flawed and
unsafe
> products and big environmental polluters -- now outpacing the
organized
> plaintiffs bar and everyone else in underwriting candidates in
> expensive
> judicial races, strong enforcement of established consumer, health,
and
> environmental protections is in serious jeopardy, along with fair
> functioning of the legal system, and public respect for the courts.
> 
> Although the judiciary's big money problem is most visible at the
state
> Supreme Court level, where high-spending TV advertising underwritten
by
> special interests is becoming the norm, money is increasingly
infecting
> the justice system at lower levels, too.
> 
> Last June, for example, The Los Angeles Times reported that 17
> incumbent
> district judges in Nevada on the ballot of the last judicial election
> raised over $1.7 million in campaign funds. Much of the money was
> harvested from attorneys and casinos and other corporations with cases
> pending before them. Of the 17 incumbents, the report further noted,
13
> ran unopposed, but collected nearly $1 million in campaign
> contributions
> anyway.
> 
> At the end of the campaign, they were sitting on unspent contributions
> of
> $634,000, which they were not required to return. Instead, Nevada law
> provides broad leeway for judges to roll over excess contributions to
> their next campaign -- discouraging future challengers -- or to pay
for
> fancy restaurant dinners or other lifestyle enhancing activity that
> might
> creatively be justified as campaigning.
> 
> The resulting damage here is palpable. Courts derive their legitimacy
> from
> their perceived neutrality and independence. Judges, whose
> constitutional
> role it is to fairly apply the facts and law in individual cases, are
> supposed to stand up to powerful interests when necessary -- with no
> exemption for campaign contributors. When check-wielding interest
> groups
> support congenial judicial candidates -- in essence, buying up seats
on
> the bench -- they undermine the fundamental mission of the courts.
> 
> 
> II. The Turning Point
> 
> Thirty-nine states choose at least some of their top judges by
> election,
> creating a patchwork of partisan and non-partisan contests, and
> uncontested up-or-down votes on appointed incumbents, known as
> "retention
> elections."
> 
> In all, about 86 percent of America's judges are required to face
> voters.
> 
> Judicial elections have always been a breeding ground for conflicts of
> interest. Beyond a candidate's relatives and personal friends, and a
> smattering of good government types, after all, who would feel
> motivated
> to contribute to the average judicial contest -- except for those
> looking
> to improve the odds of favorable rulings, namely lawyers and their
> clients? But, until recently, contests even for the top state
> judgeships
> were typically quiet, low-visibility affairs, and the fundraising and
> conflict issues relatively benign. In many places, campaign
> contributions
> were less of a worry than other perennial problems, like undue
> clubhouse
> influence, partisan or ethnic voting defeating worthy candidates, low
> voter interest, and a shortage of quality candidates willing to run.
> 
> But in just a few short years, state judicial campaigns have changed
> dramatically, and not for the better. Thanks to a huge influx of
> special
> interest money, once tame and dignified judicial contests are more and
> more degenerating into nasty and expensive partisan slugfests,
complete
> with inaccurate and distorting TV ads that mimic the worst excesses of
> campaigns for Congress or governor.
> 
> In the December 1 issue of American Lawyer, Alison Frankel retraces
the
> history of the successful business-backed movement to remake the civil
> justice system to render it less hospitable to product liability suits
> and
> high damage awards for people's injury claims -- the prime driving
> force
> turning judicial elections into corruptive money pits.  In the late
> 1980s
> in Texas, Ms. Frankel recounts, a coalition of businesses and doctors
> formed the Texas Civil Justice League and proceeded to lobby the state
> legislature for a cap on punitive damages and other pro-defendant
> changes
> in the law.
> 
> As part of their strategy, they also got heavily involved in state
> judicial elections by, among other things, distributing millions of
> playing-card-sized voter guides through local businesses and doctors'
> offices. By 1995, these efforts had succeeded in transforming the
Texas
> Supreme Court. "The new Texas court showed its allegiance quickly,"
Ms.
> Frankel writes, "with pro-business ruling on punitive damages and
> expert
> witnesses."
> 
> But the real turning point came in 2000.
> 
> In October of that year, the United States Chamber of Commerce, the
> prominent business lobby, announced that it would spend more that $1
> million on "educational" advertising in Mississippi and a handful of
> other
> states where companies complained of "frivolous" lawsuits.
> 
> Its stated goal was to warn voters about judicial candidates who might
> overrule so-called tort reform legislation backed by business. The
Ohio
> and Illinois Supreme Courts had already done just that, throwing out
> sweeping tort law changes approved by those states' legislatures on
> state
> constitutional grounds.
> 
> The $1 million the national chamber of commerce was committing came on
> top
> of millions more it was already contributing to advertising campaigns
> being conducted by its affiliates in Michigan and Ohio dealing with
> Supreme Court races in those states.
> 
> Officials of the national chamber contended more aggressive
involvement
> in
> judicial races was necessary to counteract the influence of
> contributions
> trial lawyers were making to judicial campaigns. They were suggesting
a
> link, not entirely unfairly, between trial lawyer largesse and rulings
> striking down pro-business "tort reform" laws passed by state
> legislatures. (Of course those laws' path through the legislatures had
> been well-greased by the chamber's own generous donations to state
> lawmakers' campaigns.)
> 
> In 2000, state Supreme Court candidates collectively spent $45.6
> million
> on their races, an astonishing 61 percent increase over two years
> before,
> and double the total raised by judicial candidates in 1994.
> 
> At least half of all donations came from two sectors of society with a
> big
> stake in court decisions: business interests and lawyers.
> 
> These swelling war chests launched unprecedented judicial "air wars,"
> and
> a discernible coarsening in the tone of judicial campaigning. All
> together, more than $10 million was spent barraging voters with more
> than
> 22,000 airings of television ads, according to data contained in the
> 2000
> edition of "The New Politics of Judicial Elections," the bi-annual
> report
> on judicial campaigns issued by Justice-at-Stake, New York University
> Law
> School's Brennan Center for Justice , and the National Institute for
> Money
> in State Politics.
> 
> The television commercials, many of them decidedly un-judgelike attack
> ads, were bought either by the judicial candidates themselves or by
> political parties and interest groups. But at least, all those 15-
> second
> and 30-second TV ads were confined to just four states with fiercely
> contested races -- Ohio, Mississippi, Michigan, and Alabama.  The rest
> of
> the country was spared.
> 
> 
> III. The Virus Spreads
> 
> In the 2002 election cycle, regrettably, more states were infected by
> this
> special-interest-money fever. More special interests began targeting
> state
> Supreme Court seats, and television ads became a mainstay of judicial
> elections in more than twice as many states as in 2000 -- even though
> fewer states had contested elections that year. In Mississippi, the
> average cost of winning a judgeship skyrocketed to more than $1
> million,
> compared to just under $400,000 two years earlier -- the increase,
> perversely, both driven and underwritten by special interests.
> 
> In June 2002, the U.S. Supreme Court, made it harder to contain the
> damage. Its 5-to-4 ruling in one landmark case, Republican Party of
> Minnesota v. White, struck down, on free speech grounds, a Minnesota
> rule
> forbidding judicial candidates from announcing their views on
> contentious
> public policy issues.
> 
> The issue of candidate speech in campaigns for the bench, it should be
> said, is not a simple one. Once states decide to elect judges, voters
> need
> meaningful information so they can determine who, from their
> standpoint,
> would make a better judge, and candidates are entitled to leeway
beyond
> what some state judicial codes have historically allowed to make their
> case.
> 
> The difficult challenge, which Justice Antonin Scalia's majority
> opinion
> brushes past, is to spell out an approach that leaves adequate room
for
> campaign speech while making clear that states retain the authority to
> draw a line against judges and judicial wannabes promising, or coming
> perilously close to promising, to rule a particular way on an issue
> percolating in the courts.
> 
> Emboldened by the White ruling, state supreme court candidates and
> special
> interests spending on their own ran television ads in 11 competitive
> judicial races in 2002, appealing to voters by invoking hot button
> issues
> like tort liability and crime. In nine of those contests, the
> candidates
> who spent the most on ads won.
> 
> Former Justice Sandra Day O'Connor, a fervent crusader in her
> retirement
> for preserving judicial independence, has lately expressed regret
about
> her deciding vote in the White case.
> 
> Justice O'Connor devoted most of her concurring opinion to detailing
> her
> longtime opposition to judicial elections and support for merit
> appointment of judges, but ultimately concluded that if states persist
> in
> having judicial elections, candidates must be allowed to have their
> full-throated say.
> 
> Whatever one's view of the underlying First Amendment issue, the
> eloquent
> dissenting opinion filed by Justice Ruth Bader Ginsburg, warning of
the
> potential for increased politicization and undermining of the
> judiciary's
> special role, now seems prescient. Justice Ginsburg and her fellow
> dissenters, Justices John Paul Stevens, Stephan Breyer, and David
> Souter,
> also pointed to the affront to due process when litigants must appear
> before judges whose apparent neutrality is compromised not just by
> campaign fundraising but by their outspoken statements on issues
during
> an
> election.
> 
> But back to the timeline. Since 2002, the involvement of moneyed
> interests
> in state Supreme Court elections has only escalated. The $24.4 million
> candidates and interest groups spent on TV ads in 2004 more than
> doubled
> the previous record set in 2000. The average amount raised by winning
> candidates who raised any money was about $650,000, compared to
> $450,000
> in 2002.
> 
> "A perfect storm of hardball TV ads, millions in campaign
contributions
> and bare-knuckled special interest politics is descending on a growing
> number of Supreme Court campaigns," declared the 2004 edition of "The
> New
> Politics of Judicial Elections." State supreme court contests, the
> report
> further noted, "are becoming epic battlegrounds in the tort liability
> wars, the culture wars, and other contests where powerful groups and
> wealthy donors seek to install judges who will rule in their interest,
> not
> the public interest."
> 
> This year the trend continued. Voters went to the polls in 22
contested
> Supreme Court races in 11 states on November 7. TV ads appeared in all
> but
> one of the states, and new candidate fundraising records were set in
> four
> states, according to the Brennan Center of Justice. In at least eight
> Supreme Court campaigns, fundraising totals soared past $1 million. In
> Washington State, independent advertising by special interest groups
in
> furtherance of an unsuccessful primary campaign to oust the state's
> incumbent Supreme Court Chief Justice, Gerry Alexander, exceeded $1.3
> million, according to a recent report in the Seattle-Post-
> Intelligencer.
> 
> The doubts created about judicial impartiality are soaring just as
> rapidly.
> 
> 
> IV. The Race for a Cure
> 
> Federal court administrators use the term "judicial emergency" to
refer
> to
> federal jurisdictions where the appointment process has lagged in
> filling
> judicial vacancies. In states where judges are chosen by election, by
> contrast, the real "judicial emergency" isn't vacancies, but the
degree
> to
> which courts are now filled with judges who are beholden to the
moneyed
> interests that helped elect them.
> 
> Of course, no method of choosing judges is perfect or altogether free
> of
> politics. Appointive systems breed their own set of confounding
issues.
> That has never been more true than today, with the tremendous partisan
> wrangling at the federal level over the qualifications and ideology of
> presidential court nominees.
> 
> But judicial elections that are increasingly polluted by enormous
> floods
> of special interest money are far worse. The disturbing role that
money
> now plays -- which is only getting worse -- seals the case for
> abandoning
> elections in favor of merit selection.
> 
> Even merit selection does not completely remove special interest money
> from the process -- special interests can still contribute to
> governors,
> or whoever is doing the appointing, and they lobby for certain kinds
of
> judges to be appointed. But by using a process that assigns a major
> role
> in the winnowing of applicants to an independent blue ribbon screening
> panel not controlled by the appointing elected official -- the course
> long
> urged by many bar associations and civic groups -- special interest
> influence can at least be limited.
> 
> Unfortunately, merit selection of state judges has to be a long-term
> goal.
> There is still considerable popular support for the idea of electing
> judges, and special interests that are doing well with their pay-to-
> play
> contributions to judicial candidates have every selfish reason to
> defend
> the status quo.
> 
> On the encouraging side, the defeat this past election of several
> ballot
> initiatives backed by interest groups seeking to cut back on judicial
> power and independence was a sign voters understand the importance of
> maintaining a strong court system. In the aftermath of November's
> elections, debate over the problem of money in judicial elections is
> intensifying, and the list of states considering some sort of reform
is
> growing.
> 
> Short of the wholesale replacement of judicial elections with a merit
> appointment system, the next best antidote would be replacing the
> special-interest money flowing to judges with clean public financing.
> North Carolina recently adopted a public financing system for judicial
> elections, and it seems to be working well so far in enhancing
judicial
> independence.
> 
> More rigorous financial disclosure is also needed. As Public Citizen
> has
> usefully detailed, for example, the Chamber of Commerce has a history
> of
> channeling electioneering money to front groups in order to disguise
> pro-business support for favored juducial candidates.
> 
> It would also help if judges who benefit from huge campaign donations
> from
> special interests would have the good sense and decency to recuse
> themselves when big cases involving those same interests come before
> them.
> State bar associations, ethics boards, and state legislatures should
be
> pushing for tougher recusal rules -- and pointing out the illogic of
> saying that a small gift by a litigant to a judge creates an
> impermissible
> conflict, but a multi-million-dollar campaign contribution, which can
> make
> the difference between a judicial candidate winning or losing his
> judgeship, does not. In states that hold partisan judicial elections,
> switching to nonpartisan campaigns, which are typically less
expensive,
> and bereft of party labels inappropriate for judicial office, would be
> another positive tweak.
> 
> The U.S. Supreme Court, for its part, should revisit its decision in
> the
> White case to at least make clear that its permissive attitude toward
> candidate speech does not extend to barring states from curbing the
> direct
> involvement of judges in hitting up donors, or promising voters how
> they
> would resolve a particular case or churning legal issue.
> 
> It is bad enough that the ever-increasing cost of running for
> legislative
> or executive office fosters cozy ties between politicians and special
> interests looking to influence government decisions. The extension of
> that
> seamy pathology to powerful elected judgeships marks a disturbing
> escalation of the political influence game.
> 
> Judges are supposed to be different.
> 
> Legislative and executive officials represent their various
> constituencies. Judges, in contrast, are supposed to represent only
the
> ideal of justice. A judge deciding a case shouldn't be worrying how
> ruling
> a certain way might affect campaign fundraising, or whether it might
> invite a blitz of negative TV ads in the next election.
> 
> It is time -- long past time, really -- to drain the influence money
> from
> America's system of justice.
> 
> 
> Copyright 2007 The New York Times Company
> 
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