King County Bar Bulletin (July 2006)
Justice is traditionally portrayed blindfolded, not because justice is blind to the facts or the law, but because justice is impartial. From the earliest traditions of western civilization - dating back to the Magna Carta - to the present day, judges have been admonished not to show favoritism, but to judge equally without preconception or bias; charged not to sell justice, but to judge fairly.
To help insure impartiality, 100 years ago the people of Washington abandoned partisan judicial elections and amended the constitution to guarantee non-partisan elections. But 2006 has brought a new threat to judicial impartiality in Washington. This year, political action committees have stepped fully into the fray of judicial elections.
The PACs are less interested in traditional judicial qualifications such as impartiality, independence, experience or wisdom. They begin instead at the opposite end of the spectrum, seeking candidates for judicial office who mirror their own views and whom they believe will reshape the law of Washington into their own images.
After the Legislature's decision earlier this year to extend to judicial candidates the same campaign contribution limits that apply to other political offices, special interests can no longer pour hundreds of thousands of dollars into the campaign of a favored judicial candidate. Instead, Alex Hays of the Constitutional Law PAC has said quite directly that special interests will simply make independent campaign expenditures in support of their favored judicial candidates.1
Moreover, the ConLaw PAC is directly recruiting candidates to run against sitting judges.2 Mimicking Newton's law that for every action there is an equal and opposite reaction, an opposing FairPAC soon followed the formation of the ConLaw PAC.3
So what can Washington voters expect from the entry of PACs into judicial elections? The experience in other states is not encouraging. The first consequence of special interest attention to judicial elections is skyrocketing spending. The elections of 2004 are illustrative.
Twenty-two states choose supreme court judges through contested elections, and a record amount of money was spent in nine; Washington already was one of those.4 The average funds raised by the winning candidates increased by 45 percent over 2002. Two candidates in a contested race in Illinois, Justice Lloyd Karmeier and Judge Gordon Maag, combined to raise more than $9.3 million, a new national record.5
Both the average and the median funds spent by supreme court candidates in 2004 set records.6 Money talked in these elections. In 81 percent of the contested supreme court elections in 2004, the candidate who raised the most money won the race.
Special interest money leads to increased television ads, many negative. In 2004, the trends were alarming:
Candidates' ads increasingly focused on "family and conservative values;" their protection of victims' rights; and their view that "small businesses and working people deserve a fair shot in the courtroom."8
Candidates tend to embrace ideological positions when special interest money heavily influences the campaign: Illinois Judge Lloyd Karmeier was "tackling the medical malpractice crisis;" New Mexico Justice Edward Chavez believed in swift and certain punishment for violent crime; Judge Samac Richardson stood for "traditional Mississippi values."9 In Alabama's 2006 supreme court primary, one candidate announced that "abortion on demand is a travesty," while another declared that he "fought as a conservative attorney for pro-life legislation for many years. He also worked with James Dobson and Focus on the Family, to promote pro-family legislation in Alabama."10
A particularly troublesome problem is the appearance of unfairness when a judge rules on cases that affect the special interests that have heavily supported the judge. Consider the decision of the Illinois Supreme Court in Avery v. State Farm Automobile Ins. Co. The case was pending during the 2004 Illinois election, in which State Farm contributed $350,000 to the campaign of Judge Lloyd Karmeier, while trade groups of which State Farm was a member gave $1 million to Karmeier.11 After he was elected, Judge Karmeier declined to recuse himself from sitting on the case and cast the tie-breaking vote to reverse a $1 billion verdict against State Farm, including $456 million in contract damages.
In West Virginia, Justice Brent D. Benjamin defeated incumbent Justice Warren McGraw with the help of Don L. Blankenship, chairman and CEO of Massey Energy Co., who gave $3 million to two committees that ran ads attacking McGraw.12 Benjamin declined to recuse himself from sitting on the appeal of a $50 million jury verdict against Massey Energy.
Is this the future of Washington judicial elections - skyrocketing campaign costs, negative TV attack ads, ideological commitments by candidates and refusals to recuse? Not necessarily. The KCBA is working with a coalition of bar and good-government groups to improve judicial selection through reforms that will attract and elect the best and most impartial candidates. Please see John Ruhl's column on page 2 and stay tuned for next month's edition of the Bar Bulletin, which will highlight the judicial information Web site being mounted by the coalition and other reform efforts.
1 Modie, "Political Spending Cap May Backfire: Campaign Donor Law May Just Reroute Money," Seattle Post Intelligencer, March 23, 2006.
2 Modie, "State PAC to Push for Right-Wing Judges," Seattle Post-Intelligencer, November 25, 2005.
3 LaCorte, "Judicial PACs Could Change Tone of Campaigns," Seattle Post-Intelligencer, May 6, 2006.
4 Goldberg, Samis, Bender and Weiss, The New Politics of Judicial Elections 2004 at 13 (Rutledge, ed.) (available at www.justiceatstake.org/files/NewPoliticsReport2004.pdf.
5 Id. at 14Ð15.
6 Id. at 16.
7 Id. at 1Ð9.
8 Id. at 9.
9 Id.
10 "Alabama's Supreme Court Primary Campaigns Highlight Radical Transformation of State Judicial Elections," www.justiceatstake.org, June 2, 2006.
11 Sample, The True Cost of Expensive Court Seats, Slate.com, March 6, 2006.
12 Geier, "Recusal Fight Highlights Judicial Election Concerns," National Law Journal, April 4, 2006.
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