National perspectives

The challenging issues facing our courts are not unique to Oregon. Throughout the United States, judges are vulnerable to intimidation and the corrupting influence of money as judicial elections become increasingly politicized.

U.S. Supreme Court rules on campaign contributions and recusal requirements

The U.S. Supreme Court’s decision in June 2009, in the Caperton v. Massey case, originating in West Verginia, ruled that elected judges are required to withdraw from considering cases when parties to those cases have made substantial contributions to their election campaigns.

H. Thomas Wells Jr., President, American Bar Association stated, “The court established standards for clear violations of due process, cases where the campaign contributions are so large, so important, or so closely tied to a pending case as to ‘imperil public confidence in the fairness and integrity of the nation’s elected judges.’ But instances remain where campaign contributions raise suspicions that justice leans to the highest bidder. Studies show the public and even many judges themselves believe campaign money from litigants and from their lawyers influences judicial decisions. “Courts rely on public confidence in the fairness of our legal system to foster willing compliance with their rulings. When confidence succumbs to cynicism, our government is at risk. The pervasive influence of money on judicial election campaigns threatens to create a crisis of confidence in our state court systems” (LINK)

The American Judicature Society, a nonpartisan organization with a national membership of judges and lawyer, applauded the Supreme Court’s decision and provided an alternative to contested election of judges: merit selection. “The core features of a merit selection system, outlined by the American Judicature Society’s Model Judicial Selection Provisions, (LINK) to the underlined language: provide for a broadly-based commission to nominate the best-qualified people for appointment to the bench … No statewide merit selection system has ever been abandoned in favor of returning to contestable judicial elections.”

The Brennan Center for Justice

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court—more than 60% of the total amount spent to support Justice Benjamin’s campaign—while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict.

“According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the Petitioners, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.”

“The sole interested source of money, the enormous sums, and the timing of the expenditures in this case constitute an egregious example of a national trend—brazen attempts to purchase influence in pending cases,” said James Sample, counsel for the Brennan Center. “Ted Olson and the petitioners are squarely on the mark—this case is far beneath the floor of the most basic notions of due process.”

U.S. Supreme Court approval rating

The ABA Journal reports that a “new Gallup poll shows that half of Americans believe the U. S. Supreme Court is “about right” ideologically, an all-time high and an increase of 7 percentage points over last year. Sixty-one percent of Americans surveyed approve of the job done by the U.S. Supreme court, the highest level since 2001...”

Judicial races reveal power of special interests

Chicago Tribune, July 28, 2008:

“Sixty-six percent of Americans can name at least one judge on the popular TV show ‘American Idol,’ while only 15 percent can identify John Roberts as chief justice of the Supreme Court. That’s according to a poll showing Americans are largely clueless when it comes to knowledge of the nation’s judicial system.

“Yet special-interest lobbies—from business groups to labor unions and trial lawyers—know very well who is running for state Supreme Court seats around the nation because they are pouring unprecedented millions of dollars into these formerly obscure races, with the intent of electing justices who will advance or protect their financial interests.”(LINK)

Wisconsin breaks campaign spending record

According to the Wisconsin Democracy Campaign, the 2008 Supreme Court race in that state set a record for campaign costs, with a total of nearly $6 million spent.(LINK)

Even more troubling is the percentage spent by third-party groups, which are not required to disclose their funding sources. $4.8 million was spent by special interest groups like “Wisconsin Manufacturers & Commerce,” the “Greater Wisconsin Committee,” the “Coalition for America’s Families“ and “Club for Growth Wisconsin.”

Judicial elections in Alabama involve enormous sums

Justice at Stake's Gavel Grab notes that, in Alabama, every dollar raised for judicial election campaigns comes from private contributions. Every dollar spent on civil representation for poor citizens also comes from private donations. Sadly, donations to judicial campaigns are more than double the amount spent to fund civil justice for the poor. (LINK)