One of the most shocking ads aired this political season was aimed at a woman named Robin Hudson.
Hudson, 62, is not a congressional or Senate candidate. Rather, she is a state Supreme Court justice in North Carolina, seeking her second eight-year term. It wasn’t all that long ago when, in North Carolina, judicial races were publicly financed. If a candidate spent more than $100,000, it was unusual. Ads mainly consisted of judicial candidates promising to be fair. Any money the candidates raised was almost entirely local.
This ad in North Carolina, however, which aired during the primary season, was a startling departure. First, the money came from an organization called Justice for All NC — which, in turn, was funded primarily by the Republican State Leadership Committee. That is to say, it was the kind of post-Citizens United money that has flooded the political system and polluted our politics.
And then there was its substance. “We want judges to protect us,” the ad began. The voice-over went on to say that when child molesters sued to stop electronic monitoring, Hudson had “sided with the predators.”
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Not surprisingly, the truth was a bit different. In 2010, the state Supreme Court was asked to rule on whether an electronic-monitoring law could apply to those who had been convicted before it passed. Hudson, in a dissent, wrote that the law could not be applied retroactively.
As it turns out, the ad probably backfired. “It clearly exceeded all bounds of propriety and accuracy,” said Robert Orr, a former North Carolina Supreme Court justice. Hudson won her primary and has a good chance of retaining her seat in the election next week.
But her experience is being replicated in many of the 38 states that hold some form of judicial elections. “We are seeing money records broken all over the country,” said Bert Brandenburg, the executive director of Justice at Stake, which tracks money in judicial elections. “Right now, we are watching big money being spent in Michigan. We are seeing the same thing in Montana and Ohio. There is even money going into a district court race in Missouri.” He added, “This is the new normal.”
To be sure, the definition of big money in a judicial election is a lot different than big money in a hotly contested Senate race. According to Alicia Bannon at the Brennan Center for Justice at New York University School of Law, a total of $38.7 million was spent on judicial elections in 2009-10. During the next election cycle, the total rose to $56.4 million.
But that is partly the point. “With a relatively small investment, interest groups have opportunities to shape state courts,” said Bannon. Sure enough, that is exactly what seems to be going on. Americans for Prosperity, financed by the Koch brothers, has been involved in races in Tennessee and Montana, according to Brandenburg. And the Republican State Leadership Committee started something this year called the Judicial Fairness Initiative, which supports conservative candidates.
In that district court race in Missouri, for instance, Judge Pat Joyce, a 20-year judicial veteran, has been accused in attack ads bought by the Republican State Leadership Committee as being a liberal. (“Radical environmentalists think Joyce is so groovy,” says one ad.) Republicans are spending $100,000 on attack ads and have given another $100,000 to her opponent, a man whose campaign was nearly $13,000 in debt before the Republican money showed up.
It should be obvious why this is a problem. Judges need to be impartial, and that is harder when they have to raise a lot of money from people who are likely to appear before them in court — in order to compete with independent campaign expenditures. An influx of independent campaign money aimed at one judge can also serve as a warning shot to other judges that they’ll face the same opposition if their rulings aren’t conservative enough. Most of all, it is terribly corrosive to the rule of law if people don’t believe in the essential fairness of judges.
Yet there seems to be little doubt that the need to raise money does, in fact, affect judges. Joanna Shepherd, a professor at Emory Law, conducted an empirical study that tried to determine whether television attack ads were causing judges to rule against criminal defendants more often. (Most attack ads revolve around criminal cases.) She found, as she wrote in a report entitled “Skewed Justice,” that “the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.”
“There are two hypotheses,” she told me when I called to ask her about the study. “Either judges are fearful of making rulings that provide fodder for the ads. Or the TV ads are working and helping get certain judges elected.”
“Either way,” she concluded, “outcomes are changing.”
© 2014 New York Times