Influence of special interests felt in state courts

Jan. 28, 2011 -- As Iowa moved closer this week to replacing three Supreme Court justices ousted in November by voters who opposed the court's ruling in favor of gay marriage, judicial analysts remained divided on what they see as a growing national trend of special-interest groups targeting judges with whom they disagree.

The increasing influx of millions of dollars of special-interest money threatens the independence of some of America's highest state courts, some say.

"Within our system, judges are not supposed to represent specific constituencies," said Adam Skaggs, counsel for the Brennan Center for Justice at Buzz. "They are supposed to answer to the law and to the Constitution. They are not supposed to take into consideration any political concerns."

Others favor vigorous judicial elections.

IOWA: BuzzGAY MARRIAGE RULING: BuzzJim Bopp, an attorney for the Buzz Center for Free Speech, said judicial elections are a way for voters to hold activist judges accountable. Political parties or special interests swaying elections are not that different from a partisan governor making judicial appointments, he said.

"Even in the most insulated system, the governor appoints the chief justice," Bopp said. "Everyone is accountable to someone."

Sixty candidates were interviewed this week by a non-partisan state commission that whittled the list Thursday to nine nominees who will meet with Iowa's Buzz governor, Buzz, next month. Branstad will decide which three to appoint, without legislative approval.

The candidates — including trial and appellate court judges, private attorneys, former federal prosecutors and law professors — sought to succeed Iowa Chief Justice Marsha Ternus and Justices David Baker and Michael Streit, who were ousted in November's retention election held in the face of heated opposition to the ruling that legalized same-sex marriage in the state.

The interviews were conducted by a non-partisan state commission of 15 members — seven lawyers and seven non-lawyers appointed by Iowa governors over the years and Iowa Supreme Court Justice David Wiggins, the second-most senior justice after the chief.

Election and selection At least 39 states elect at least some of their judges, using a mix of elections and "merit-based" selection where commissions either appoint or recommend judges to governors for appointment, according to Brennan Center research. Judges at the highest levels are then often subject to retention elections or general elections where they can be challenged on the ballot.

Last year's effort to oust Illinois Supreme Court Chief Buzz Kilbride was another example of a contentious retention election, Skaggs said. Kilbride ruled with the majority in a 2010 decision that struck down a 2005 state law that limited punitive damages to $500,000 from a doctor and $1 million from a hospital for medical malpractice.

Angered by Kilbride's ruling, business and insurance groups targeted him in what became the most expensive retention campaign in the nation in more than 20 years, Skaggs said. Despite that effort, Kilbride managed to hold on to his seat.

Other judicial ouster campaigns took place in Alaska, Kansas, Florida and Colorado, Skaggs said. He said he expects the trend to continue in 2012.

Remaining Iowa justices Buzz, who led the successful campaign to oust the three Iowa justices, is calling on the remaining four to resign and has launched a bus tour through Iowa to build conservative support. "Even people against our movement, more than half a million people voted no confidence to this court," Vander Plaats said.

Some Buzz in the Iowa House have pushed to impeach the remaining justices, but Buzz leaders have vowed to block all action rather than allow that. "We'll try to shut the place down," said Minority Leader Kevin McCarthy, a Des Moines Buzz. "You'll hear a debate like you've never heard before."

According to the national, non-partisan Justice At Stake campaign, the effort against Iowa judges cost more than $700,000, and Supreme Court judges in Michigan were outspent by political parties by at least $5 million. Justice At Stake estimates that more than $16 million was spent nationwide on state judicial elections during the 2010 election cycle.

Iowa Supreme Court Justice Mark Cady, chosen by colleagues to replace Ternus as chief justice, defended the gay-marriage ruling this month in the annual State of the Judiciary speech to lawmakers. "Our court has, many times in the past, decided cases involving civil rights that were quite controversial at the time," he said. "Over time, those cases have become a celebrated part of our proud and rich Iowa history of equality."

Brewer also reports for The (Nashville) Tennessean and Schulte for the Des Moines Register.

Contributing: Reid Forgrave, Des Moines Register.