In rare public remarks last week, U.S. Supreme Court Justice Ruth Bader Ginsburg said the money involved in electing judges remains one of the most pressing concerns facing the American court system. And she joined her former colleague, Sandra Day O'Connor, in calling for reform.
"If there's a reform I would make, it would be that," Ginsburg said when asked about the issue at the National Association of Women Judges Thursday night.
Yet money has continued to pour into the campaign accounts of state judges around the country, and ABC News has obtained an advanced copy of a study showing the amounts involved are unprecedented.
In the past decade, candidates for state judgeships raised more than $206 million, more than double the $83 million judges raised in the 1990s, according to the soon-to-be released study by the Brennan Center for Justice at NYU School of Law and Justice at Stake, two non partisan groups that advocate for reforming the judicial selection process.
Three of the last five state Supreme Court election cycles topped $45 million. And judges shattered fundraising records in all but two of the 21 states with contested Supreme Court elections in the last ten years, the report found.
"State judicial elections have been transformed," the report says, and the money involved has created "a grave and growing challenge to the impartiality of our nation's courts."
Concerns about the expanding role of money in judicial elections achieved widespread attention two years ago when ABC News and other outlets documented contributions from West Virginia mining executive Don Blankenship to fund an advertising campaign for a candidate for that state's high court. The CEO of the country's fourth largest coal company helped raise more than $3.5 million for ads aimed at getting a new judge elected, all while his company was appealing to the State supreme court a $70 million judgment against it.
That case led the U.S. Supreme Court to cry foul, saying a justice should step aside from a case if one of the parties has given so much money that the probability of bias would not be "constitutionally tolerable."
Electing judges is a common practice in the U.S., with nearly 90 percent of all judges in 39 states facing at least some form of election during their tenure. Some advocates for expanding judicial elections say the contests serve a valuable purpose. Jim Bopp, an Indiana lawyer who has been pushing for more states to elect their judges, said many conservatives view the elections as "a way to keep judges within the proper bounds. A way to keep them judges rather than judicial activists."
But others see the Blankenship controversy as a proverbial canary in the coal mine for what top judicial scholars – including Justice O'Connor -- are now calling an alarming political trend. The amount of money flowing into these contests, O'Connor told a group of Georgetown Law students last month, has become "a threat to judicial independence."
"If both sides unleash their campaign spending without restrictions," O'Connor said, it will "erode the impartiality of the judiciary."
More expensive battles are coming. Thirty eight state court justices will be on state ballots this year, and in many of the races, the fundraising has already begun.