Op/Ed: Attacking the Bench

 
By Joanne Doroshow, CJ&D Executive Director, and Stephen C.Halpern, Professor of Political Science at the State University of New York at Buffalo.
The nature of judicial elections in this country is fundamentally changing. Never before has so much corporate money been dumped into the states or the purpose of ensuring the election of pro-industry judges and defeating judges who have voted to strike down tort reforms -- laws that limit or immunize corporations from liability and make it more difficult or impossible for injured consumers to go to court.
This election season, the U.S. Chamber of Commerce spent an unprecedented $1 million in an advertising blitz sponsored by the Institute for Legal Reform--the Chamber's tort reform wing. Jim Wootton, head of the Institute, says the Chamber specifically targeted states where judges may be called upon to rule on the constitutionality of tort restrictions.
For the Chamber, the results were mixed. Initial problems for the group emerged even before Election Day, when a Mississippi federal court greed with state officials that the Chamber's failure to file campaign finance reports for its "issue ads" violated election laws. Two of the Chamber's four endorsed judicial candidates were re-elected. But another -- the state chief justice -- was defeated, while the fourth faces a runoff election.
Nowhere did the corporate money flow more heavily than into Ohio, where the Ohio Chamber, U.S. Chamber and other business interests spent millions trying to oust Supreme Court Justice Alice Robie Resnick. Businesses disliked Resnick's 1999 decision declaring Ohio’s draconian 1996 "tort reform" law unconstitutional. In a major defeat for the Chamber, Resnick was reelected. 

In other states, like Alabama, Michigan, and Indiana, Chamber-endorsed candidates won. Despite a few losses, the Chamber's Wootten called the overall effort a "success," promising only to increase the "commitment" to electing judges the Chamber likes, or ousting those it doesn't, in future years. In fact, the Chamber doesn't need to actually win a judicial race to have an impact -- the threat of a Chamber-funded, big-money opponent could be enough to make judges think twice before deciding difficult cases.

From our nation's beginning, the independence of judges has been a national concern. Eighty-seven percent of state judges in the country -- in forty-two states -- must compete in elections at some point in their career, either in retention votes or against opposing judicial candidates. That these elections are now becoming as nasty, partisan and expensive as any other electoral campaign is alarming. It is a phenomenon that could have severe repercussions for our democracy. 

From our nation's beginning, the independence of judges has been a source of national concern. When the colonists separated from England, they listed King George's attempts to restrict the independence of judges as one of a long list of offenses enumerated in the Declaration of Independence. 

To "judge" anything -- whether it is a ball game, karaoke contest or a lawsuit -- requires that the person doing the judging be neutral and objective. That, in turn, requires that judges be free from fear that decisions they make might jeopardize their tenure in office. Indeed, the integrity and legitimacy of the judging process hinge on the assumption that judges will render decisions based on the "merits" of a case, and not on how a decision may affect the judge's personal or professional future. Judges who must look over their shoulder to calculate how their decisions might play with certain individuals or groups in the community cannot fulfill the basic role of what it is we expect of a judge. 

When groups like the U.S. Chamber of Commerce fund judicial attack ads and orchestrate campaigns against judges because of decisions they have rendered, the very foundations of our judicial systems are threatened. With money and politics already dominating the executive and legislative branches, our court system is one of the only places left in America where individual citizens can successfully confront powerful industries and institutions, force changes in their dangerous behavior and seek justice. 

Independent judges and jurors represents a much-needed counterweight to the dominance of organized moneyed interests in the political branches of our government. Unlike legislators or officials of the executive branch, judges are not supposed to be partisans or advocates of particular interests, neither beholden to them nor afraid of their wrath. We are right to expect that judicial decisionmaking will be apolitical. Accordingly, throughout much of our history, we have struggled to keep those who ascend to the bench insulated from political attack and reprisal by those who are dissatisfied with their decisions. 

Unfortunately, with the Chamber's orchestrated spending against judicial candidates, this tradition, which has served and protected us so well for over 200 years, is threatened.