Too many judicial races are decided by big money from special interests.
Corporate greed, dubious judicial ethics and political intrigue—if it sounds like the plot of a new John Grisham novel, that’s because it is. But the bestselling author says he looked no further than West Virginia to inspire his latest offering, The Appeal.
Grisham’s fictional version is set in Mississippi, where a major chemical company has just been hit with a $41 million judgment. Carl Trudeau, the CEO of the New York-based company, decides he needs to get a favorable justice onto the state Supreme Court to ensure his company wins the appeal. Barry Rinehart is the shady politico who’s helping him do it. The two bet that Carl can “buy a Supreme Court Justice” for $8 million. Not a paltry sum, but as Carl concludes, “it’s cheaper than a verdict.”
Depending on who you talk to, the real story isn’t as black and white, nor is it easy to tell if the players involved are quite as Machiavellian as those in Grisham’s novel. But the book is loosely based on the antics surrounding a 2004 West Virginia race for state Supreme Court, where challenger Brent Benjamin unseated incumbent Justice Warren McGraw.
That race, and the controversy that ensued once Benjamin took his seat on the court, is one reason that many are taking a fresh look at the nature of modern judicial contests. Big money and sometimes questionable candidates abound from Alabama to Washington State.
“These elections are easily bought,” says David Browne, a Democratic media consultant who has worked on high court races in several states, including West Virginia. Browne founded the Democratic Judicial Campaign Committee, he says, in response to the increased involvement of the U.S. Chamber of Commerce in judicial races during the mid-1990’s. “At fi rst the races weren’t that expensive, but now they are off the charts,” Browne says. “In Ohio, it’s the chemical industry that pours in the money. In Alabama, it’s largely the energy industry.”
Increasingly dominated by special interest money, the modern landscape of these campaigns is riddled with fiercely negative and overtly political attacks. Most contested judicial elections follow a similar formula. Trial lawyers line up on one side and business interests line up on the other. The average voter tends to know little about the candidates themselves, and less still about the issues involved. Name recognition is just about zero for most candidates, and getting attention is most of the battle.
The one judicial contest already waged this past spring featured all the hallmarks of the modern judicial campaign. In that nasty April race for Wisconsin Supreme Court, millions were spent on attack ads by third-party business and education groups. According to one estimate, both high court candidates were outspent on the airwaves 10 to 1 by outside interests. And because of the state’s weak disclosure laws, those groups were able to keep their contributors largely private.
A recent report from the Justice at Stake Campaign, a coalition of reform groups that mostly advocates for publicly funded judicial contests, assesses the current state of affairs this way: “Attorneys, business interests, ideological groups and political partisans have locked themselves into an escalating arms race. Judges and justices routinely raise millions of dollars from contributors whose cases they decide. Above all, special interests are working to convert judicial elections into a tool of political intimidation rather than public accountability.”
Along with skyrocketing money and attention from special interests, hundreds of thousands of dollars in TV ad spending has become the norm. And in the wake of a 2002 U.S. Supreme Court decision—one that several states have interpreted very differently—some judicial candidates can now openly express their positions on hot-button political issues, from abortion to the war in Iraq.
Matthew Streb, a political science professor at Northern Illinois University who studies judicial elections, says the old focus on “judicial fairness” and “legal experience” in court contests has, in many cases, given way to more traditional political mudslinging. It’s a pattern that has been in the works for years, but Streb thinks it’s about to reach a breaking point as new freedoms for judicial candidates collide with major reform efforts in more than half a dozen states. There’s also potential for a new U.S. Supreme Court case that could have major ramifications for the way judicial elections are funded.
“The West Virginia case is obviously the poster child for reform,” Streb says. That state’s Supreme Court contest in 2004 saw millions in spending from special interests and business groups, and the race gained national notoriety for its nasty and expensive TV ads. But what happened once Republican Brent Benjamin won his seat on the court is the sort of thing that keeps the reformers in business.
One of Benjamin’s biggest boosters during his Supreme Court race was the CEO of Massey Energy, a Richmond, Va.-based company. Massey CEO Don Blankenship spent some $3.5 million to blanket the airwaves with TV ads slamming the incumbent, Warren McGraw, helping Benjamin win a seat on the court.
During that campaign, Massey Energy was appealing a $50 million jury verdict in a suit brought by a coal-producing company, Harman Mining. The suit—essentially a contract dispute—was waiting to be heard by the state Supreme Court of Appeals.
After an election that featured charges that McGraw coddled child molesters and other criminals during his time on the court, and a media blitz that saw ads run in the Washington, D.C. media market, Benjamin prevailed.
Following the November election, the court heard Massey’s appeal, with its newest justice on the bench. Harman Mining and others called for Benjamin to recuse himself to avoid a confl ict of interest. He didn’t, and he cast the deciding vote that threw out the judgment against Massey.
A second controversy helped force a re-hearing of the appeal. Photos surfaced of the court’s chief justice, Elliot Maynard, vacationing in the French Riviera with Massey’s CEO. The resulting uproar was enough to get Maynard ousted from the court in a primary this past spring, and it heightened public interest in a court already shrouded in controversy.
Again, Benjamin ignored calls to recuse himself. He wrote in court documents that there was no reason to suggest that he couldn’t rule fairly and impartially. And again, he cast the deciding vote that threw out the $50 million judgment. Benjamin declined comment on this story, citing the inability of a sitting justice to comment on pending litigation. Massey Energy did not return calls for this story.
Now, Benjamin’s controversial decision is the focus of a case pending cert before the U.S. Supreme Court.
“This is not a left or a right issue. This is an issue of fairness, and the [Supreme] Court should hear this case,” says Ted Olson, the former Bush administration solicitor general. Last year, Olson says, lawyers for Harman Mining’s president Hugh Caperton asked him to write their cert petition to the Supreme Court.
“In this or any case, it’s impossible to prove for certain that the judge allowed a decision to be infl uenced,” Olson says. “The question is under what circumstances would a reasonable person think the fairness of the judge could be in doubt?” In Benjamin’s case, Olson says that question is one of fi nancial magnitude.
In the entire 2004 race for the West Virginia Supreme Court, there was roughly $5 million spent on Benjamin’s campaign. If $3.5 million of that came from Massey CEO Don Blankenship, Olson says that’s enough of a reason to question Benjamin’s ability to rule fairly.
In addition to Olson, a coalition of reform groups, along with the American Bar Association, is urging the high court to take the case, and most legal experts think the justices will heed that call. The decision on whether or not to hear the case will be made sometime this month.
Either fairly or unfairly, West Virginia is far from the only state where the appearance of a confl ict of interest maligns judges. And as more money pours in, things only look worse.
In Ohio, justices with conflicts of interest have long been a complaint about that state’s Supreme Court. A 2006 review by The New York Times found that the state’s justices almost never recused themselves from cases involving their campaign contributors, and that those justices ruled in favor of their contributors some 70 percent of the time.
Last year, Wisconsin state Supreme Court Justice Annette Ziegler shunned calls to recuse herself from a case involving the state’s largest business lobby. Wisconsin Manufacturers and Commerce had spent more than $2 million to help Ziegler get elected to the court.
In that state and some others, the proliferation of special interest money is exacerbated by weak disclosure laws, making it tough to figure out just who is funding the third party groups fueling judicial campaigns. That’s the case in Michigan, where the state’s chief justice, Clifford Taylor, is up for reelection. Both sides think it’s likely to be the most expensive judicial race in American history. It’s on track to cost some $20 million.
“Froma [political] consultant’s point of view, I guess everybody’s happy,” says Blair Butterworth, a Democratic consultant who has worked judicial races in Washington state. “From a citizen’s point of view, it’s the pits.”
Of judicial contests, Butterworth says, “I can’t stand them.” But big independent expenditure money very likely means more interest from political consultants. “So, from our industry’s point of view, the only money seems to be in doing the wrong things.”
Butterworth worked for an appeals court judge this year. He said a colleague needled him about not holding out to work for a third-party with some actual money. The most troubling thing to Butterworth about this new spate of special interest advertising in judicial contests? “Voters may have been uninformed before,” he says, “but at least they weren’t misinformed.”
Supporters of judicial contests rightly point out that there are cases where the appearance of conflict is disproportionate to any actual conflict that might exist. Judges cannot stop independent expenditure campaigns, and proponents of judicial contests argue that it’s unlikely such campaigns radically alter judicial philosophy. If a judge has a reputation for being anti-regulation, why wouldn’t big business support them? Just like political action committees give to members of Congress who are predisposed to support their ideological positions, interest groups give to judges whose judicial philosophy is in sync with their goals.
Still, the stench of conflict remains, which is why an increasing number of judges and judicial candidates themselves are urging reform.
Back in West Virginia, the current state of affairs has led to a crisis of confi dence in the high court, and a seemingly unprecedented level of public attention on this year’s race. Three candidates styling themselves as reformers are running, and the race is a good case study of the delicate balance these races require.
Longtime Charleston lawyer Beth Walker is one of three candidates vying for one of those seats on West Virginia’s Supreme Court of Appeals; she is the sole Republican. Opponents and critics have tried to tie her to Massey CEO Don Blankenship and the GOP backers that have pumped millions into West Virginia politics over the past several cycles.
Her campaign has worked hard to shed any perception of a connection between the two. After a report that Blankenship had met with both Walker and one of her Democratic opponents, Huntington lawyer Menis Ketchum, the candidates responded aggressively, denying they had any interest in Blankenship’s backing.
And so far the independent expenditure money, which four years ago came largely from Blankenship, hasn’t surfaced in this race.
Walker’s message: “This court is too political. So many things have been politicized, from the recusal issues to the decisions in certain cases, to whether other cases even get heard.”
Walker has been practicing law in West Virginia for some 20 years, she tells me as we sit in the conference room of her downtown Charleston law offi ce. And, like most political neophytes, Walker says she never dreamed she’d enter politics.
She calls herself a political outsider, but she nevertheless has a distinctly political message. Her opponents, Walker says, represent the politics of the past, and over the last few years she has become increasingly worried about what she terms “an activist court.”
But it wasn’t until 2004 that most voters even started to take notice of the court, given the race between McGraw and Benjamin. That one was hard to avoid.
“Whatever else that race succeeded in doing, it certainly left voters with a much higher level of awareness of the court,” Walker concedes. “It’s not always a positive perception, though.”
It’s probably one of the reasons Walker’s opponents didn’t exactly fall all over themselves to talk with me. The thought of a conversation with me, said Democrat Menis Ketchum, scared the hell out of him.
Ketchum hasn’t gotten the best press, which he pointed out when he first returned my call.
“I hear you want to talk to me about my campaign,” he said. When I told him I did, there was a long pause. “Why?” he asked, incredulously.
His surprise reflected the skepticism of a candidate who has been scorned more than once by the press. As I explained the story, though, he softened. “There’s a few people out there who like making me look bad,” he explained.
Ketchum too is positioning himself as a political outsider, and as the victim of some nasty third-party attacks. “There were negative radio ads running against me by the middle of August,” he says. “So I’m in the position of having to combat out-of-state money from special interests with big war chests. It seems like they just want to buy a court.”
Neither Ketchum nor Walker seem entirely comfortable playing hardball. Still, there’s almost a resigned acknowledgement that to win, they might not have much choice.
Ketchum’s media consultant is David Browne, who helped him vanquish the court’s former chief justice Elliot Maynard—he of the French Riviera photos—in a spring primary. “People were upset that we went negative on Maynard,” he says. “We had to. It was very clear that he was the Don Blankenship candidate. But I had polling that said outside of Charleston, no one even knew about the connection. So what were we supposed to do?”
When it comes to judicial races, Browne is a seasoned veteran. He has worked on some of the most expensive and toughest races around over the past few election cycles. In 2006, Browne worked for Democrat Sue Bell Cobb, in a race for chief justice in Alabama. That contest set fundraising and spending records in the state, and saw more than 15,000 TV spots aired.
Browne says while he doesn’t like the current process, until it is fixed candidates have to do what it takes to win. “I make radio and TV ads. But personally, I don’t think it’s a great way to elect a judge,” he says. “What I tell my candidates is that you have to fight fire with fire.”
As for Beth Walker, Browne says “she gets the benefit of the doubt, until the outside money starts pouring in on her behalf.”
Walker’s campaign manager Roman Stauffer says the campaign isn’t looking for any of that outside help. “We can’t control what gets spent for us or against us by outside groups,” he says. “We’re just running our own campaign.”
Stauffer sits in front of a huge map of West Virginia. Pinned to the top are two black and white photos of Walker’s Democratic opponents, former state Supreme Court Justice Margaret Workman and Menis Ketchum.
This is Stauffer’s first judicial race, and he says there’s a learning curve. A former Fred Thompson aide, he’s operating with a meager staff—about five full-timers, including himself. Stauffer and one other staffer are the only ones occupying the dank Charleston campaign headquarters.
Their biggest challenge? Fundraising. Judicial candidates aren’t permitted to directly solicit campaign contributions in most states. Beth Walker cannot attend her own fundraisers, and says she has not, and will not, look at a list of her contributors even after November’s election.
“Maybe I’m idealistic or naïve, but I really don’t know who is giving money to my campaign,” Walker says. “I haven’t seen the lists, I haven’t looked at the lists of the other candidates, and I won’t. That’s the most I can do.”
As for the process, neither Ketchum nor Walker are sure of the right fix, though they both tacitly acknowledge there is something wrong.
“They’re turning us into big-time politicians,” Ketchum laments. “That’s why I feel we ought to look at the North Carolina plan that takes us out of that big-time politics.” North Carolina was the first state to adopt public financing for judicial candidates. Last year, New Mexico became the second state to do so.
Walker disagrees. She thinks North Carolina’s plan wouldn’t be a good use of taxpayer dollars and would raise First Amendment concerns. However, she does think that the state legislature should consider nonpartisan judicial elections.
And perhaps the easiest political shot is one that neither of them would take. Of Justice Brent Benjamin and the Massey case, Walker wouldn’t say whether Benjamin should have recused himself. She believes only the judge himself should make that decision. As for Ketchum, he wouldn’t touch the recusal controversy with a 20-foot pole. “No matter what I say someone will take it and twist it, so I’ve haven’t got a thing to say on that.”
Yet another layer of this story comes in the context of a six-year-old U.S. Supreme Court decision that judicial candidates in many states are still trying to sort out. In Republican Party of Minnesota v. White, the high court struck down the state’s “announce clause,” which prohibited judicial candidates from talking about their political beliefs. The 5-4 decision freed judicial candidates to announce their views on disputed legal and political questions—even on political hot-buttons.
In the six years since the White case, a slew of states have seen their own announce clauses challenged. The verdicts have been mixed.
Some court candidates have embraced White, while others remain reluctant. Reformers point to people like Kentucky’s Rick Johnson as evidence that a full-throated embrace of White is a bad idea for judicial hopefuls. Critics say it’s the reason Johnson lost his 2006 race.
Johnson trumpeted his pro-life views on the campaign trail. He expressed support for displaying the Ten Commandments in courthouses and schools. His opponent wouldn’t outline his positions on those or most other issues that could potentially come before the court. Johnson lost the race, but says it only bolstered his convictions about judicial speech.
“It’s a very elitist system because the lawyers and the academics that are in a position to question the judges and to read their writings have a feel for where you stand philosophically,” Johnson says. “The average voter doesn’t. So what’s wrong with us telling them? It’s just like any other race, voters want to know what your values are.”
After a few more election cycles, the public should know more about how campaign contributions affect rulings, says Matthew Streb of Northern Illinois University. There will also be some definite successes and failures when it comes to reform efforts. In several states, changing the system requires constitutional amendments and voter approval—not a quick process.
We should see definite trends in individual states toward either publicly funded judicial campaigns and substantive reform, or toward relaxed regulations on judicial speech and an accelerated politicization of the process.
And, if the Massey case is heard before the U.S. Supreme Court, and if it’s decided the way Ted Olson hopes, there could be big changes ahead for funding. Olson thinks the decision might undercut the rationale for big-time independent expenditures and push states to impose new finance restrictions.
But unless those changes happen, there’s no sign legal and business communities will lose their newly heightened interest in judicial contests. “I think they have realized, ‘Hey, we can get a lot more bang for our buck by donating to a judge than to a legislative candidate,’” Streb says.
And the push for reform is pulling in some high profile names like former Supreme Court Justice Sandra Day O’Connor. It was O’Connor who cast the critical vote in 2002 opening the door to greater judicial speech. She has since expressed public doubt over her vote in the White case, and has taken the lead in criticizing special interest–driven court contests, calling them a serious threat to judicial independence. O’Connor is headlining a forum this month at Georgetown University’s law school to examine the current system and explore potential fixes.
“I still think it has to get a lot worse than this,” says David Browne. “Once things get even uglier and meaner, then we might finally get some real reform.”
Shane D'Aprile is web editor at Politics magazine.