Litigation

O?Connor Warns of Peril Posed by Campaign Cash

By Peter Hardin

Retired Supreme Court Justice Sandra Day O’Connor warned today that the greatest threat to judicial independence in the nation is the “flood” of campaign cash flowing into courtrooms, and she also said that eroding faith in the judiciary is far-reaching.

Justice O’Connor gave keynote remarks at a Washington, D.C. event sponsored by the Justice at Stake Campaign and the Committee for Economic Development to discuss a newly released report, “The New Politics of Judicial Elections 2000-2009: Decade of Change.”

The report, co-authored by Justice at Stake and two partner groups, shows how special-interest money has exploded in state court races in the past decade, posing an unprecedented threat to the fairness, impartiality and independence of America’s courts.

Another speaker at the event, Hugh Caperton, brought a compelling personal story to the discussion of judicial reform.

“It appears that justice indeed is for sale,” Caperton said. He came into national prominence in 2009, when his Supreme Court case, Caperton v. Massey, became a landmark decision on when judges must recuse themselves from cases involving major campaign supporters. Despite that victory, however, his company lost its long court battle in West Virginia against a rival firm.

“I’m here because I’m a citizen that has experienced first-hand the devastation and destruction that big money is causing in our judicial elections, and ultimately in our courts,” Caperton said.

Justice O’Connor has crisscrossed the nation advocating an end to state elections of judges in order to ensure fair and impartial courts that are protected from politics. Bert Brandenburg, executive director of Justice at Stake, introduced her as someone who has “helped us put this issue on the American political map.”

Addressing today’s event at the National Press Club, Justice O’Connor spotlighted some of the reasons she has advocated for merit-based judicial selection systems to take the place of election systems for picking judges.

“The real, single greatest threat to judicial independence in our country today is the flood of money coming into the courtrooms by increasingly expensive and volatile campaigns,” she said.

Well-organized interest groups of varying stripes are getting mobilized to help candidates run for the bench in state campaigns that sometimes cost more than a U.S. Senate campaign, she said. “It’s just unbelievable to me,” she added.

“How can we have faith in a system,” Justice O’Connor asked, “when large amounts of money are used to influence the outcome of judicial elections?”

Stressing the principle of judicial independence, she said there has to be “one safe place” in a democracy; historically, it has been the courtroom, where difficult issues are decided by fair-minded and independent judges. But there are increasing threats to judicial independence that are eroding that idea, she said.

Justice O’Connor also expressed concern that declining public confidence in the judiciary is not limited to state courts where judges are elected.

“Many of the threats brought about by judicial elections only directly affect state court judges. But they should concern federal judges as well, because the eroding faith in our judiciary is far-reaching,” she said.

Other speakers highlighted from different vantage points their concern about threats to fair and impartial courts.

Charles Kolb, executive director of the Committee for Economic Development, urged his audience to watch a new documentary called “Inside Job” about causes of the global financial meltdown, among them campaign money.

“It is a very clear reminder of how money can corrupt institutions to the detriment of all Americans,” said Kolb.

Chief Justice Wallace Jefferson of the Texas Supreme Court was among speakers who emphasized the importance of public confidence in the integrity of the judiciary.

“To the extent the public distrusts its judicial system,” he said, “democracy is at stake.”

The “New Politics” report showed that spending on state Supreme Court elections more than doubled in the past decade, from $83.3 million in 1990-1999 to $206.9 million in 2000-2009, and deep-pocketed special interests play a dominant role in choosing state jurists.

It was written by Justice at Stake, the Brennan Center for Justice at NYU School of Law, the National Institute on Money in State Politics and Hofstra law professor James Sample.

Full post as published by The Gavel on September 30, 2010 (boomark / email).