Jun 04 2012
The summer 2012 cover story of The American Scholar explores the influence of big money on judicial elections and the corrosive effect that it has on the public’s confidence in courts. The story looks at a case study on political spending and judicial elections in Wisconsin and also explores the ramifications of the U.S. Supreme Court’s 2010 Citizens United decision.
In Wisconsin, the 2008 state Supreme Court race was tainted by contributions from big business. The two candidates spent $1.2 million combined. Special interests contributed $3.4 million. Much of the special interest money was spent on attack ads that helped to sway the electorate. As a result, the incumbent justice, Louis Butler, was ousted from his seat on the bench and the political slant of the court shifted from liberal to conservative. In the past five years, special interests in Wisconsin have spent $14.8 million on judicial campaign TV ads. This figure is second only to the level of special interest spending in Pennsylvania. The 2008 election was so fraught with intrigue that Butler compared it to the John Grisham novel, The Appeal, a legal thriller in which a chemical company manipulates a judicial campaign to replace a liberal justice in order to pack the court with conservatives who will overturn a $41 million verdict against the company.
One detail from the Wisconsin election that seems like it could have been pulled from a novel: the winning candidate, Michael Gableman, received two years of free legal counsel when, for the second time, he appealed misconduct charges levied by Wisconsin’s judicial commission. In his defense, the candidate claimed that his counsel was not free. He said that the firm represented him on a contingency basis, and he would pay the firm if he won his case and the state paid the bill. “The arrangement distilled to its corrosive essence a core problem of judicial elections: Gableman received free counsel from a law firm that asked for his vote, an explicit conflict of interest; and worse, he gave his vote five times.”
The problems illustrated by the events in Wisconsin are likely to be exacerbated by the 2010 U.S. Supreme Court ruling in Citizens United. That case equated independent spending with speech, and the Court concluded that putting constraints on the independent spending of corporations, unions, and other organizations in political campaigns would infringe First Amendment free speech rights. The case effectively removed limitations on special interest spending in elections, including judicial elections.
Wisconsin has expressed a growing interest in getting rid of judicial elections and replacing them with a Merit Selection system in order “to reclaim justice from politics and repair the Wisconsin Supreme Court’s reputation.” Implementing Merit Selection requires that the Wisconsin constitution be amended. The amendment would have to be passed by two, consecutive state legislatures before it could be presented to voters in a public referendum.
In the wake of the indictment of state Supreme Court Justice Joan Orie Melvin on campaign corruption charges, the call for judicial selection reform in Pennsylvania is as relevant as ever. But bringing change to the Commonwealth is a long process, just as in Wisconsin. However, legislation is pending now in the PA General Assembly that would give the people of Pennsylvania the chance to vote on whether to adopt Merit Selection, a system that would once and for all take judges out of the fundraising game.
“Reducing justice to politics, now awash in money and swayed by deep pockets, judicial elections show how a central institution of democracy can be turned into a grubby embarrassment to good government that sometimes appears to function as a puppet of plutocracy.” We hope that Pennsylvanians and Wisconsinites will get the opportunity to decide whether there is a better way to choose appellate court judges.