March 17, 2010 -- 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.
Last week, on the same day Ginsburg was calling for reform, top Alabama appellate lawyers were flowing into the Ruth's Chris Steak House in downtown Birmingham for a reception honoring Alabama Supreme Court Justice Michael F. Bolin, according to an invitation to the event. The requested contribution was $250.
Bolin is seeking reelection to the bench after first being elected in 2004 with more than $1 million in financial support from business groups, according to the National Institute on Money in State Politics. Alabama campaigns have been exceptionally contentious in recent years, as business interests and trial lawyers have squared off behind opposing candidates for the state supreme court. A 2003 study by the Institute found that out of 1,424 court cases they examined, 904 of them -- or 63 percent -- involved a party or attorney who had made a contribution to a Supreme Court Justice before that Justice ruled on the contributor's case.
Bopp said there's a reason Bolin and other business-backed judges won seats on the court. They were elected, Bopp said, to help reverse a trend of rulings that favored trial lawyers. For years, Bopp said, "Democrat judges in Alabama created tort hell."
"What was happening was, the trial lawyers had seized control of the state supreme court and their rulings were very favorable to the trial lawyers," he said. "There became very substantial opposition to these judicial activists and they were defeated."
Similar battles – fueled by business groups on one side, and trial lawyers on the other -- have been erupting all around the country. In many cases, the involvement of local interest groups serves to hide the role of the national money in the contests.
In Washington State in 2004, for instance, a pro-business group called the Voters Education Committee poured $1.4 million into attack ads in an attorney general's race.
After the group refused to identify its investors, the state launched an investigation that uncovered one major source of its funds – the U.S. Chamber of Commerce, the powerful pro-business lobby in Washington. Chamber officials declined to comment for this report.
Another flashpoint has been Wisconsin, where a business group made up of utilities, insurance carriers, investment houses , and others began supporting candidates in judicial elections. Wisconsin Manufacturers & Commerce spent $4 million on ads that blanketed the airwaves in recent contests for two seats on the Wisconsin State Supreme Court, according to research by the Wisconsin Democracy Campaign, a non partisan group that tracks political giving in the state. The most controversial ad in the 2008 campaign was produced by the business-backed challenger to Justice Louis Butler. The ad accused Butler of setting a child molester free to rape again, and showed a photo of Butler, who is black, next to the mug shot of the rapist, who is also black.
"Louis Butler worked to put criminals on the street, like Ruben Lee Mitchell, who raped an 11 year old girl with learning disabilities," the ad said ominously. "Butler found a loophole … Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?"
The Wisconsin Judicial Commission called the ad misleading and the ad's sponsor, Michael Gableman, later conceded in a public statement that he made his case to voters "imperfectly and in shorthand, a necessity in judicial campaigns." Gableman narrowly won the election anyway and now sits on the court.
Lawyers for the Wisconsin business group have told reporters that their involvement in judicial elections is a matter of free speech, and that judges they help elect should be free to hear cases even when Wisconsin Manufacturers & Commerce is itself a party.
"Individuals and organizations spend money to help elect a judicial candidate precisely because they want that candidate to be a judge that is, to preside over cases, including their own," one of the group's attorneys, Mike Wittenwyler said in a petition to the court. "There is nothing corrupt about that. That is democracy."
After Wisconsin Manufacturers & Commerce spent $2.2 million to help elect conservative candidate Annette Ziegler in 2007, its lawyers filed a friend-of-the-court brief on a major corporate tax case. Ziegler authored a 4-3 decision in the case that ruled in the group's favor.
Notoriety from that episode, along with fallout from the U.S. Supreme Court ruling in the West Virginia case, helped prompt the court to consider new rules spelling out when campaign donations create conflicts of interest. What emerged were new guidelines saying justices do not have to sit out a case just because one of the parties involved donated to them.
At a contentious meeting where the justices debated the new guidelines, Gableman said forcing a justice to step aside would lend credence to the incorrect assumption that "judges, by receiving lawful campaign contributions, are somehow suspect or are going to be swayed or persuaded or more inclined to vote for one party or the other."
"The electorate has the right to support the judicial candidates that they feel are the best," he said.
But Wisconsin Justice Ann Walsh Bradley, one of the three dissenters to the new policy, said she was "dumbfounded" by the decision to let sitting justices solicit donations from parties with pending cases before them.
She said if she described that policy to her friends back home, she knew how they would respond.
"Are you crazy?" would be their reaction, she told her colleagues. "Are you kidding?"The new recusal rules, the majority acknowledged, were taken nearly word-for-word from a proposal drafted by the Wisconsin Manufacturers & Commerce.