Judicial Elections Turn 'Bitter, Nasty' and Pricey

June 19, 2007 — -- When Linda Trout was appointed to the Idaho Supreme Court in 1992, she became the state's first female Supreme Court justice and one of the youngest members of the court in state history.

Now, after 15 years on the high court, Trout plans to step down in August — in large part because she does not want to endure what she fears will be an expensive and divisive election.

"Judicial elections have turned into bitter, nasty fights, which I don't think is seemly for the judiciary," said Trout, who was the target of an attack ad campaign when she last ran for office in 2002.

"I'm looking nationally at the trend toward more and more costly and contentious judicial elections," she told ABC News. "I don't want to go through that."

Over the last several years, once-tame judicial elections across the country have become high-stakes political battles, fueled by special interest money and the kind of raucous campaigning once reserved for legislative or presidential races, according to a recently released study from the Justice at Stake Campaign and the Brennan Center for Justice at New York University School of Law.

"The more money that's poured into judicial elections, the more likely it is that courts will become places that react to special interest groups rather than to the concept of impartial justice," Indiana Supreme Court Chief Justice Randall Shepard told ABC News.

More Politics, Less Objectivity?

Supporters of judicial elections say they ensure that judges are held accountable to voters. Critics warn the rising cost and coarsening tenor of judicial campaigns are trends that undermine the independence of the judiciary — and that have persuaded some candidates, like Trout, to avoid running at all.

Thirty-nine states elect at least some of their judges. State high court candidates in the 11 states that had contested elections last year raised more than $34 million, from groups such as the Democratic and Republican parties, the National Association of Manufacturers and trial lawyers, the report said.

The median amount of money raised by high court candidates last year rose nearly 20 percent, to $244,000, up from $202,000 in 2004, the report said.

An 'Unacceptable Cost

Five states set new fundraising records last year, including Alabama, where the race for chief justice was the second most expensive judicial election in U.S. history. Alabama's high court candidates raised a record $13.4 million in 2006.

Voters in that state saw about 17,000 television ads, many of them attack ads, during the campaign — that was more than during the last three election cycles combined. One ad warned that a candidate had freed a convicted killer from death row. Another warned that a candidate was "too liberal." A third insinuated that a candidate supported gay marriage.

In Georgia, former Attorney General John Ashcroft recorded an automated phone call in which he said an incumbent judge was a "liberal activist" … "who will stop at nothing to win," according to the Brennan Center report.

Television ads are now the norm in judicial elections, the report said. In 2000, candidates in four of 18 states ran television ads in judicial elections; last year, candidates in 10 of 11 states did.

"Just a few years ago it was a blip on the radar," said the Brennan Center's James Sample. "Now it's a mainstay in judicial elections."

Alabama Chief Justice Sue Bell Cobb, who won a seat on that state's Supreme Court after raising $2.6 million, called the cost of the election "unacceptable" and said she was troubled by the prospect of judges raising money or otherwise asking for support in their campaigns.

"People need to have complete faith in the courts, and raising large amounts of money doesn't give people comfort that they have an independent judiciary," she said.

Tort Reform and Free Speech

The rising price of judicial elections has been fueled, in large part, by the national fight over tort reform. Trial lawyers and pro-business groups, who want to limit the size of jury verdicts, are consistently the largest judicial campaign contributors.

In the last several years, business groups, led by the U.S. Chamber of Commerce, have funneled tens of millions of dollars into key races in states known for high jury verdicts in product-liability cases, such as Alabama and Illinois. These efforts have successfully unseated a number of judges.

Court candidates have also become far more outspoken about their personal beliefs in the last five years. This began when the U.S. Supreme Court, in Minnesota Republican Party vs. White, struck down a state law that prohibited judicial contenders from announcing their "views on disputed legal or political issues."

Since then, pressure has grown for prospective justices to take positions on social issues. Groups now send questionnaires to judges asking their views on abortion, gay rights and school prayer, among other issues.

To supporters, asking candidates to explain their beliefs is a matter of accountability.

"Voters need information on the judicial philosophy of the candidates," said James Bopp, who won the White case in the Supreme Court. "It takes campaigns and judicial free speech to ferret out judges that are prepared to legislate from the bench."

Changes in the System

At the same time, large influxes of cash seemed to be less effective in 2006 than in previous years.

Last minute infusions of cash into close races failed to sway elections in states like Alabama, Georgia and Illinois. The candidate with the most television advertising won 67 percent of the time, down from 85 percent in 2004, according to the Brennan Center report.

Some states are also experimenting with various election reforms. Alabama's Cobb said that she would push this year for nonpartisan elections and that she was considering proposals to have a committee of lawyers vet judicial nominations.

Other states, such as Nevada, are considering publicly financed elections or appointing judges, though that change may meet resistance in many states.

"I will defend our system of elected judges," said Alabama Associate Justice Tom Parker. "I certainly trust the voters more than politicians to select members of our judiciary."

Until the election system is reformed to lessen the influence of money, however, it will continue to lose lawyers who do not want to go through rough and tumble elections, according to Ohio Supreme Court Chief Justice Thomas Moyer.

"There's no question it discourages many highly qualified lawyers who would make excellent judges," he said.