Most people don't think about judicial elections until they find themselves staring at a group of unfamiliar names on the ballot. But judges are selected by voters in 39 states, whether in an initial election or a retention election after being appointed. The explainer below details how special-interest money has increasingly flooded the system over the last several decades—including the first ever set of data on campaign money in lower court races.
it is a failure of democracy for Americans to consistently vote for someone of whom they know absolutely nothing...
Best Little Courthouse in Texas
Historically, judicial elections involved little in the way of campaign spending, but in Texas in the 1980s, Karl Rove recognized the potential of backing judges favoring a conservative agenda. The strategy soon spread, with donations to state supreme court candidates nationwide totaling $83 million in the 1990s and more than $206 million in the 2000s.
The GOP's Sweet Home, Alabama
Rove went on to work with business power brokers in Alabama; donations to that state's Supreme Court candidates since 2000 (including "Ten Commandments Judge" Roy Moore) have been higher than in any other state, totaling more than $48 million.
The Rising Tide of Special-Interest Money
But direct spending by judicial campaigns was just the beginning. Over the last decade, outside spending by special-interest and partisan groups has soared. And Citizens United is accelerating that trend: In the 2011-12 cycle, spending from outside groups came in at a record $24.9 million—a nearly sevenfold increase since 2000.
This year, partisan groups have continued to spend millions in states like North Carolina and Tennessee, aiming to unseat supreme court justices. Judges in these scenarios "have had to become professional fundraisers," says Bert Brandenberg, executive director of the judicial-reform group Justice at Stake, "often soliciting money from parties who will appear before them in court."
Where Are the Roughest Campaigns?
Fewer than two dozen big players were behind nearly $72 million in campaign spending on supreme court races nationwide between 2000 and 2012. They included business heavyweights such as the US Chamber of Commerce and partisan groups focused on specific races in states like Michigan (where an estimated $13-$18 million was spent in 2011-12), Florida (at least $4.8 million in 2011-12), and North Carolina (at least $4.5 million in 2011-12).
The outside money, which has more than tripled over the last decade, primarily funds TV attack ads. In 2012, an ad backing a Republican judicial candidate in Ohio said his Democratic opponent "expressed sympathy for rapists." In the North Carolina Supreme Court primary this year, an ad blasted a candidate who "sides with child predators." The local bar association condemned that ad, as did six former state justices, calling it "disgusting" and "false."
The Hidden Spending on Lower Courts
Campaign funding in races for lower courts is even more obscure—despite the fact that these races produce the vast majority of judges, and those most citizens will face. The first ever set of data on these races, compiled for 10 states, shows that more than $55 million was raised during the 2011-12 election cycle alone.
The Best Ruling Money Can Buy
The total cost of judicial elections ($288 million since 2000) is still nowhere near that of congressional races ($17 billion since 2000). Donors potentially buy a lot more influence, with less money, when they back judges: In West Virginia in 2004, the CEO of Massey Energy spent $3 million on his preferred Supreme Court candidate; that justice later cast the deciding vote to overturn a $50 million verdict against the company—a nearly 1,600 percent return on investment.
REPORT: Partisanship And Diversity On The Sunday Shows
by ROB SAVILLO
The four broadcast networks' Sunday morning political talk shows guests skewed right during the first quarter of 2013. MSNBC's two Sunday programs featured far greater gender and ethnic diversity in its guests than the broadcast programs and CNN's Sunday morning political talk show.
Republicans And Conservatives Dominate Broadcast Networks' Sunday Show Guest LineupsBroadcast Networks Hosted Republican And Conservative Guests Most Often. Out of 400 total guests hosted by ABC's This Week, CBS' Face the Nation, NBC's Meet the Press, and Fox's Fox News Sunday during the first three months of 2013, 40 percent were either Republicans or conservatives while only 29 percent were Democrats or progressives. Centrist, nonpartisan, and ideologically neutral guests made up 31 percent.
Each Network Hosted More Guests From The Right Than The Left. Republicans and conservatives outpaced Democrats and progressives on all four networks. Fox News Sunday had the largest discrepancy, with 53 percent of guests being Republicans or conservatives and only 24 percent being Democrats or progressives.
Elected Republicans Were Hosted More Often Than Elected Democrats And Obama Administration Officials. Except for Face the Nation, elected Republicans were featured on the Sunday shows significantly more often than elected Democrats and Obama administration officials combined. Again, Fox News Sundaywas the worst offender, with 67 percent of guests in this category being Republicans.
Elected Republicans Featured In More Solo Interviews Than Elected Democrats and Obama Administration Officials. On Fox News Sunday and Meet the Press particularly, Republicans received significantly more solo interviews than Democrats. When adjusting for the amount of time devoted to interviewees as opposed to the raw number of interviews, the contrast between Republicans and Democrats grows even larger on Meet The Press. And while Face the Nation has given more solo interviews to Democrats, that lead shrinks when accounting for the amount of time devoted to interviewees. This Week -- despite hosting more Republicans for solo interviews than Democrats in raw number -- gave Democrats more total time during their interviews.
Four Of The Top Five Guests With The Most Solo Interviews Were Republicans. Leading the pack was Senator John McCain (R-AZ) and former Republican Governor Jeb Bush with five solo interviews each. Mitch McConnell (R-KY), Paul Ryan (R-WI), and senior Obama advisor David Plouffe round out the top five with four interviews each.
Partisan And Ideological Journalists Were More Likely To Be Conservative Than Progressive. While a majority of journalists, pundits, and commentators on these programs were neutral, when partisan and ideological journalists were hosted, they were much more likely to be conservative nearly across the board. Once again, this disparity was especially true on Fox News Sunday, where 47 percent of journalist guests were conservative.
Imbalanced Panels Overwhelmingly Tilted To The Right. On all four networks, when roundtable and panel discussions were imbalanced, they were far more likely to be tilted in favor of conservatives. Fox News Sunday was the worst again, with 65 percent of panels having more conservative guests than progressives and none having more progressive guests than conservatives.
MSNBC Provides Greater Guest Diversity Than Broadcast Networks, CNNMSNBC's Sunday Shows Hosted Significantly More Women Than Those Of The Broadcast Networks Or CNN's State Of The Union. Melissa Harris-Perry and Up with Chris Hayes hosted women 45 percent and 38 percent of the time, respectively. Meet the Press was the worst in this category; only 20 percent of the program's guests were women.
MSNBC's Programs Were The Only Ones Not Dominated By White Men. Both Melissa Harris-Perry and Uphosted white men closer to their representation in the general population (approximately 31 percent*, according to U.S. Census data). By contrast, white men were significantly overrepresented on the broadcast and CNN Sunday shows.
This study followed the same methodology as the previous Media Matters study, "If It's Sunday, It's Still Conservative."
We reviewed every edition of ABC's This Week, CBS' Face The Nation, NBC's Meet The Press, Fox Broadcasting Co.'s Fox News Sunday, CNN's State of the Union, and the Sunday editions of MSNBC's Up with Chris Hayes and Melissa Harris-Perry during the first quarter of 2013. Guest appearances for all seven programs were coded for gender and ethnicity. Guests appearing on the four broadcast networks were also coded for whether they appeared in solo interviews or as part of a panel; whether they were journalists, administration officials, or elected officials; and for their partisanship or ideology.
These classifications do not represent an analysis of what guests actually said when they appeared on a show on a given date. Coding each guest's comments for their ideological slant would have introduced enormous difficulties and opportunities for subjectivity. Instead, we simply classified guests based on their own ideological self-identification or public affiliation with an openly partisan or ideological organization or institution.
In the vast majority of cases, guests are clearly identifiable by their party or ideology (or as having none). Of course, in a few instances, these decisions were not as simple to make. We therefore constructed rules that could be applied as strictly as possible. Where a guest's identification was in question, Media Matters chose to err on the side of listing that guest toward the left.
Following are some of the principal rules coders employed in classifying guests:
- The party designations (Democratic and Republican) are reserved for current and former officeholders, candidates, campaign staff, political consultants associated with one party or the other, and administration officials. All others are labeled conservative, progressive, or neutral.
- The neutral category does not necessarily imply strict ideological neutrality but, rather, might better be understood as neutral/centrist/nonpartisan -- we use the term "neutral" for the sake of brevity.
- When guests served in both Republican and Democratic administrations in the past, they were coded as neutral barring any compelling reason to do otherwise. In a few cases, however, a former official who had served under presidents from both parties became clearly identified with one ideology and were coded accordingly.
- Our "Journalist" classification applies not only to daily reporters but also to opinion columnists, magazine writers, etc.
- In the case of foreign officials and journalists, we labeled all as neutral -- even though the political ideology of some might be identifiable -- to avoid the need to analyze the politics of other countries. Foreign nationals were also excluded from the diversity analysis.
- Active duty members of the armed forces were classified as members of the Obama administration. Retired officers were coded as neutral absent any other affiliation.
Ben Dimiero, Eric Hananoki, and Oliver Willis provided additional research. Charts by Alan Pyke.
By Aram James -- ACJPDEBUG
As we head into the November 4th election, let’s take a look at the election process involving judicial candidates. Are we the public getting a fair shake from the candidates? Are we being as fully informed on the issues as the First Amendment allows? Or are the candidates for judicial office playing the public and the voters for fools?
In 2002, the U.S. Supreme Court in a 5-4 decision, in Republican Party v. White, 536 U.S. 765, struck down Minnesota’s so-called announce clause, a portion of a judicial canon that prohibited candidates from announcing their views on the hot button and disputed legal, political and social issues of the day.
The rationale for the announce clause being that any candidate, who publicly expressed his or her views on controversial issues, would be precluded from hearing cases involving similar issues, once they took the bench, on the theory that having once expressed a view on a given issue, that might later come before the candidate on the court, would evidence a disqualifying bias.
The White court explicitly shot down this reasoning, declaring the announce clause unconstitutional and violative of the First Amendment.
California had a similar provision limiting candidates from addressing the controversial issues of the day. Subsequent to the White decision California’s Code of Judicial Ethics eliminated its own “announce clause.” The Supreme Court’s holding in White, written by Justice Antonin Scalia, could not be clearer: “The Minnesota Supreme Court’s canon prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”
In an equally clear statement in Justice Anthony Kennedy’s concurring opinion in White, he said, ”The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of the government to impose.”
The First Amendment concerns addressed by the court in White were not just the candidates’ rights, but the rights of the citizens as well: the right to be as fully informed (as possible) of the candidates’ views, on the critical issues of the day, before casting their vote.
A compelling quote in the majority opinion in White drives home this point:
“The greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the state chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.”
As a citizen and as lawyer, I have put forth my best efforts to draw out the judicial candidates post White, over numerous election cycles, asking the candidates to really inform the citizens about their thinking process on the issues, issues like the death penalty, our current homelessness crisis, mass incarceration, which is disproportionally visited on the poor and communities of color, gay marriage, reparations for African Americans, race based jury nullification and other controversial issues. But sadly I can say, thus far, I have mostly failed in my efforts.
Instead of complying with the mandate of White, the candidates — almost without exception — balk at answering the hard questions and issues, often acting as thought the White decision didn’t exist and the “announce clause” remains in full force.
The candidates often reply that they can’t give their views on the issues, because to do so would run afoul of California Code of Judicial Ethics.
This is simply not true. The prohibition set out in the California Code of Judicial Ethics, and consistent with the White decision, is a prohibition on promising or committing to decide a case or issue in particular manner, the so called “commit or promise clause,” but no similar prohibition remains that prevents candidates from giving their personal views on the issues.
The truth is the White decision (whether the ABA Committee on Judicial ethics or the California equivalent, likes it or not) gives the candidates extremely wide latitude to fully inform the voters of their views on the most controversial of issues, so long as they don’t violate the “commit clause.”
Everyone in the judicial system knows this is the law, but most pretend that the “announce clause” is still in place, all to the extreme detriment of the voters’ First Amendments rights and to what could otherwise be a vital, educational and robust election process.
More often than not, in the current climate of hide-the-ball from the voters, judicial races turn into mind numbing voter turn-off contests, a race to the bottom between the candidates as to which one can accumulate the longest list of law enforcement and judicial endorsement, almost like addressing the substantive issues of the day is of no importance.
In other words, educating the public on substantive issues be dammed! It’s all about winning!
Given the White mandate — that voters have a First Amendment right to be fully informed on the issues before they exercise their franchise for a particular candidate — any judicial candidate who purposely engages in the obstruction of our democracy, by pretending that they can’t address the hot button issues of the day is, without a doubt, unfit to serve in the critical role judges are supposed to play in our society: helping to define and shape justice in our communities. It’s time we the public, including pro-democracy lawyers and judges, unmask the charade engaged in by most judicial candidates, and speak out against such voter fraud.
It’s past time we put the mandate of the White decision into play.
This piece originally appeared in the Daily Journal. Aram James is a retired Santa Clara County deputy public defender and a cofounder of the Albert Cobarrubias Justice Project (ACJP)
Do Partisan Elections of Judges Produce Unequal Justice?
When Courts Review Employment Arbitrations
Michael Leroy, University of Illinois at Urbana-Champaign
Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights....