judgesonmerit.org

ABC reported yesterday on a soon-to-be released study revealing a staggering increase in the amounts of money flowing into state judicial elections in recent years. The study, conducted by the Brennan Center for Justice at NYU School of Law and Justice at Stake, shows that within the past decade candidates for state judgeships raised more than $206 million, more than double what was raised in the 1990s.

“State judicial elections have been transformed,” the report says, and the money involved has created “a grave and growing challenge to the impartiality of our nation’s courts.”

The U.S. Supreme Court ruled in Caperton v. Massey in 2002 that in extreme circumstances, a judge must step down from hearing a case involving a donor-litigant. In Caperton one of the parties had spent over $3.5 million in ads to help elect the judge. The Court held that even the appearance of bias may be enough to violate due process rights.

Caperton, however, has provided little guidance to lower courts. Parties likely to appear in court—law firms, lawyers, business organizations, unions and others—continue to invest great amounts in judicial candidates’ campaigns.

Alabama provides a telling example,

[Supreme Court Justice Michael F.] Bolin is seeking reelection to the bench after first being elected in 2004 with more than $1 million in financial support from business groups, according to the National Institute on Money in State Politics. Alabama campaigns have been exceptionally contentious in recent years, as business interests and trial lawyers have squared off behind opposing candidates for the state supreme court. A 2003 study by the Institute found that out of 1,424 court cases they examined, 904 of them — or 63 percent — involved a party or attorney who had made a contribution to a Supreme Court Justice before that Justice ruled on the contributor’s case.

Alabama is not anomaly. Similar battles have been waged across the nation, including here in Pennsylvania. Pennsylvania’s 2009 Supreme Court election proved to be the most expensive single-seat judicial race in the country, with scads of money coming from potential litigants. As former Justice Sandra Day O’Connor expressed to a group of Georgetown law students last month, the amount of money flowing into these contests has become “a threat to judicial independence.”

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