This year, 32 states will be holding contested elections or retention votes for judges on their highest courts. An ideological battle in Florida, an expensive and partisan one in North Carolina and others are providing uncomfortable lessons about why judges on the highest courts should be appointed rather than elected. Elections turn judges into politicians, and the need to raise money to finance ever more expensive campaigns makes the judiciary more vulnerable to improper influence by donors.
Special interests, like the casino, energy and hospital industries and others, have been heavily involved and sometimes find their ways around disclosure rules and exert their influence through independent expenditures, reducing race after race into a contest of slogans.
In six states where spending has been especially heavy — Alabama, Illinois, Michigan, Ohio, Pennsylvania and Texas — the harm to justice is well documented. A new report by the Center for American Progress has shown that in those states, impartiality appears diminished. It noted, “The high courts that have seen the most campaign spending are much more likely to rule in favor of big businesses and against individuals who have been injured, scammed, or subjected to discrimination.”
The center found that in 403 cases between 2000 and 2010, the courts in those states ruled in favor of corporations 71 percent of the time, notably more often than the odds would predict. From Karl Rove in Alabama to the Tea Party and the Koch brothers’ Americans for Prosperity in Wisconsin, some of the most aggressive conservative shapers of American politics today have helped push state courts to the right.
While individual judges may not sell their votes outright, political donors have an interest in electing judges who support their point of view. Businesses and their surrogates have deep pockets to contribute to campaigns, giving them tremendous sway in the elections.
With almost 40 percent of the spending in elections for top state courts in 2009-10 coming from lawyers, lobbyists and business interests, according to the Brennan Center for Justice, it is not surprising that candidates who favor business are getting elected as top-court judges or that they are taking legal positions that businesses favor.