Private campaign donors literally tipped the scales of justice in Ohio this fall, at least on television. In the midst of a bitter election for a state Supreme Court seat, an ad, paid for by a secretive business group, depicted incumbent Justice Alice Robie Resnick slyly peeking under her blindfold at a growing heap of contributions from trial lawyers. “Is justice for sale in Ohio?” the advertisement’s narrator asked, as money piled up on Resnick’s fictional scale.
That question is increasingly pertinent in Ohio, Mississippi, and Michigan, which just witnessed judicial campaigns fueled by big donations — a growing trend across the US. Nationwide, at least 39 states hold some sort of elections for judges, from local district courts to the state Supreme Court. While the corrosive effects of campaign contributions to political candidates gets plenty of press, far less attention is being paid to the fact that contributions in judicial races are also skyrocketing, which many observers say threatens judges’ impartiality.
Trial lawyers have long been major financial donors to judicial candidates, and labor unions have also given generously for years. In a new twist, business groups, heretofore relatively minor players in judicial campaigns, massively ratcheted up their giving in this last election cycle, spending millions on attack ads to discredit judicial candidates deemed to have an anti-business bias.
All of which, say observers, creates at least the appearance that judges can be unduly influenced. “The perception, to put it bluntly, is that you can buy a court,” said Mark Kozlowski, an attorney who follows judicial campaigns at New York University Law School’s Brennan Center for Justice.
Alarmed, some legal professionals, state legislators, and judges are looking to stop the trend toward meaner, more costly campaigns. This weekend, Texas Chief Justice Thomas R. Phillips will host a national summit of judges and legislators from 15 states to find a way to stop the politicization of the courts.
The insurance, medical, and tobacco industries all have a major stake in seeing friendly judges on the bench: Court rulings may result in liability awards measuring in the billions of dollars. Justice Resnick, for example, infuriated Ohio business leaders last year when she wrote the majority opinion in a decision striking down a 1996 tort-reform law that would have limited jury awards to injured litigants and placed time limits on filing medical malpractice lawsuits.
In several states, lawyers and litigants routinely appear before judges they have financially supported or fought to defeat.
This January in Texas, for instance, Supreme Court Justice Nathan Hecht accepted a $10,000 check from law firm Hughes & Luce just weeks before it presented oral arguments in a case before him. Another law firm arguing the same side of the case, Vinson & Elkins, gave a total of $13,000 in contributions to Hecht three days before filing its brief, according to Texans for Public Justice. Hecht’s dissenting opinion in that case “was exactly what (the firms) wanted,” said Cristen Feldman, a lawyer at TPJ.
All told, Hecht raised $647,673 for his re-election before June 30, with no viable opponent in sight. His primary challenger raised a paltry $10,222, according to TPJ.
“These contributions are not really buying outcomes on particular cases,” said Anthony Champagne, a professor of government and politics at the University of Texas at Dallas. “But they are buying a judicial philosophy on the bench. Battling over judicial elections is just another way of accomplishing your objectives as an interest group.”
Campaign contributions also may be involved in other kinds of judicial quid pro quo. In 1998, North Carolina Associate Justice I. Beverly Lake handed down a ruling that resulted in thousands of retirees receiving a total of $799 million in tax refunds. Last October, Lake’s campaign sent out fund-raising letters to those same retirees, asking them to “look back and recall what Justice Lake’s wisdom and demeanor have meant to each one of us.”
In New York, the spotlight has shifted to the role campaign cash plays in the granting of lucrative judicial appointments like guardianships or receiverships. A 1998 report by the New York City bar association found that at least two judges gave more than half of their appointments to individual donors or people working for law firms who donated to their campaigns.
On a national scale, the US Chamber of Commerce is the new heavyweight in judicial giving. It admitted to spending as much as $10 million on judicial races this year, with millions more coming from state chambers, according to press reports. Observers may never know exactly how much was spent, since the groups often duck public-disclosure laws by running only “issue ads” that don’t explicitly endorse candidates.
Individual interests like the Koch family, owners of the oil and gas firm Koch Industries, have taken a more varied approach to electing business-friendly courts. Groups tied to the family have taken judges on expense-paid seminars and distributed report cards grading judges on their performance, and Koch family businesses have directly given $13,500 to Texas Supreme Court justices since 1994, according to TPJ. Last year, that court ruled that Koch was not liable for injuries one of its contract workers sustained on the job.
Meanwhile, oil giant ExxonMobil is taking a different tack: In a recent New York Times ad, the company denounced the fund-raising influence of trial lawyers on judges. Why? Perhaps because the company supports tort reforms that would cap company’s liability payments and attorney’s fees — reforms that trial lawyers, of course, want judges to oppose. (ExxonMobil is all too familiar with huge torts: In 1994, a jury fined Exxon $5 billion for the Exxon-Valdez oil spill.)
ExxonMobil spokesman Tom Cirigliano said the company makes no direct contributions to judicial elections and did not give any anonymous donations to independent “issue ad” campaigns. Campaign contributions records compiled by TPJ, however, show that company employees and lawyers have spent $53,275 since 1993 to elect judges in Texas alone, where ExxonMobil is headquartered and regularly finds itself in court.
Despite the pitfalls of electing judges, experts agree that there is little public support for trading judicial elections for appointments. In Ohio, the AFL-CIO has vowed to fight any such move as undemocratic.
Still, there are other possible routes to reform. Champagne suggests judges, public officials, and public-interest groups could work to make voters aware of the interests behind the anonymous issue advertising.
Chief Justice Phillips wants to explore publicly financing judicial elections, increasing voter education about candidates and assuring fuller campaign financing disclosures. “There are ways that the state could devise to even the playing field,” he said.
Phillips knows all about uneven electoral playing fields. He personally collected $1.4 million in campaign cash for his 1996 election, raising about 70 times more than his opponent did, according to TPJ.
That’s no great feat for a sitting judge. Phillips said he knows of one judge who, in the heat of a re-election campaign, called a lawyer to ask for a contribution, only to discover after hanging up the phone that the lawyer had been scheduled to appear before him. The lawyer had already agreed to send a check.
