Judicial Elections: Overview from the April 24, 2009 CQ Researcher Report

By Kenneth Jost

Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court is well known not only at home but also across the country as an advocate for judicial independence. But when Abrahamson learned she would face an opponent for reelection to a fourth 10-year term, she pulled out all the political stops.

The 75-year-old Abrahamson hired a veteran political operative to head her campaign, collected endorsements from across the political spectrum and raised more than $1.3 million. “She came into the race prepared,” says Charles Franklin, a political science professor at the University of Wisconsin in Madison.

Abrahamson had reason to take seriously the challenge by Randy Koschnick, an outspokenly conservative circuit court judge in Milwaukee. Just a year earlier, a conservative challenger had knocked off one of Abrahamson’s fellow liberals on the bench with a hard-hitting, multimillion-dollar campaign financed in part by the state’s business lobby. Michael J. Gableman’s election as justice in April 2008 gave conservatives a 4-3 majority on the Wisconsin court.

One year later, however, Abrahamson’s political efforts paid off on April 7 with a 59 percent to 41 percent victory over Koschnick. “I ran a good race and kept it clean,” Abrahamson told Milwaukee’s Journal Sentinel afterward. But she added that her financial advantage over Koschnick – who spent only $180,000 – was critical. “That makes a big difference in how you can get your message out.”

For most of the world, Abrahamson’s victory would not be as remarkable as the fact of the election itself. Except for Japan and Switzerland, the United States is the only country that requires judges to face popular election to gain or hold office. Even though federal judges serve life terms after nomination by the president and confirmation by the Senate, 39 out of 50 states use some form of election for judgeships either at the trial or appellate level or both. The elections vary from traditional partisan contests to nonpartisan races to so-called retention elections in which incumbent judges run without an opponent and remain in office unless a majority votes to remove them.

Today as in the past, most judicial elections attract little attention. Most vacancies are initially filled by gubernatorial appointment, and virtually all incumbents remain in office whether they face “contestable” or retention elections.

Over the past 30 years, however, judicial elections in a handful of states have become high-cost, bare-knuckle political battles. In particular, the U.S. Chamber of Commerce’s decision in 2000 to dive into state judicial politics in a big way has led to multimillion-dollar campaigns like Wisconsin’s 2008 contest that have succeeded – as in Wisconsin – in tilting some state supreme courts toward business interests on civil litigation and some other issues.

The Chamber – which now generally avoids direct comment on judicial election issues – said at the time it wanted to counteract political influence in the judicial selection process by trial lawyers’ groups. Business groups like the Chamber, the National Association of Manufacturers and the American Tort Reform Association blame the plaintiffs’ bar for a history of favorable rulings on personal injury suits only recently being cut back in some states.

The increasing cost and the deteriorating tone of judicial election campaigns worry many bar associations, traditional court reform organizations and liberal advocacy groups. “Over the last 20 years, and especially in the past seven years, we’re seeing a race to the bottom with respect to financing and campaigning in judicial elections,” says Seth Andersen, executive director of the American Judicature Society, a 95-year-old court reform organization that created the retention-election systems now used in 19 states.

“Judicial elections are now posing the single, greatest threat to fair and impartial courts,” says Tommy Wells, a Birmingham, Ala., lawyer and president of the American Bar Association. The ABA along with state and local bar associations has been the major interest group supporting retention-election plans.

Wells and others fear that campaign contributions from businesses and from lawyers with cases before courts are undermining public confidence in judges’ impartiality. “There’s a real fear that money alone can be tipping scales of justice,” says Bert Brandenburg, executive director of Justice at Stake, a Washington-based coalition of liberal-leaning legal advocacy groups.

Judicial elections are strongly defended, however, by an assortment of Republican officials and leaders, business lobbies and conservative advocacy groups and experts. They emphasize that judges, especially state supreme court justices, have the power to make law in their respective jurisdictions – in some cases with no effective review by the federal judiciary.

“Judges are making law, and it’s only appropriate for the people to choose judges,” says James Bopp, a lawyer in Terre Haute, Ind., who has represented Republican and anti-abortion groups among others in campaign-speech cases at the U.S. Supreme Court and in lower federal courts. “The whole idea of popular sovereignty supports judicial elections.”

Bopp and others profess little concern about the impact of increased campaign costs and spending by businesses and other interest groups. “If you are going to elect your judges, then you pretty much have to allow much of the same trappings that you do for any other election,” says Sean Parnell, president of the Center for Competitive Politics, a Washington-based organization critical of campaign finance regulations.

Michael DeBow, a law professor at Samford University’s Cumberland School of Law in Birmingham, Ala., and a member of the conservative-libertarian Federalist Society, says the public supports judicial elections despite concerns about the impact of contributions on judges’ decisions. “They don’t want to let go of judicial elections,” DeBow says.

The debate over the impact of campaign contributions and spending is now pending at the U.S. Supreme Court. The justices are being asked to decide whether constitutional due process may require judges to step out of a case – in legal parlance, to recuse themselves – because of campaign contributions or spending by a party, lawyer or other individual with a stake in the outcome.

The issue reached the justices in a case brought by the president of a now defunct coal company in West Virginia who says state supreme court justice Brent Benjamin should have recused himself from ruling on the $50 million award the company won against a rival coal business. Benjamin refused to recuse himself even though the president of the rival company had spent more than $3 million to help Benjamin during his successful campaign for the supreme court seat in 2004. Benjamin eventually cast a critical vote in the 3-2 decision in March 2008 overturning the award.

Stricter standards on recusal are among the reforms the ABA, Justice at Stake and other public-interest groups are urging to try to counteract what they see as the negative effects on public confidence in the judiciary due to judicial elections. They also express interest in public financing of judicial campaigns – a system now on the books in two states, North Carolina and New Mexico.

From the opposite perspective, judicial election supporters say stricter recusal standards may undermine elections by deterring campaign contributions or spending. They similarly argue that public campaign financing – accompanied by overall limits on candidates’ spending – will reduce the amount of information for voters in judicial contests.

The arguments over judicial elections are drawing only limited attention from state legislators, who would have to be involved in making any changes in selection or election methods or campaign finance regulations. The general public also is largely unengaged on the issue. Indeed, despite public support for judicial elections in general, voter turnout is traditionally low in judgeship races. Wisconsin’s relatively high-profile supreme court race in April 2008 drew 830,000 voters – fewer than one-third of the nearly 3 million state voters in the presidential election in November.

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