ON THE MORNING of November 14, 2003, Iowa District Judge Jeffrey Neary met with lawyers to approve routine court orders. One of the cases before him was a divorce. It was uncontested, and Neary didn’t think twice about signing the papers dissolving the marriage. Then he glanced at the couple’s names and realized the breakup was anything but typical. He turned to the lawyer for one of the parties and exclaimed, “These two people are ladies!” Neary had just signed divorce papers for Kimberly Brown and Jennifer Perez, a lesbian couple who had entered into a same-sex civil union in Vermont. Same-sex unions are not recognized in Iowa, but instead of withdrawing the order, Neary amended the paperwork to indicate that he had terminated a civil union and settled property disputes between the women.
When Neary’s decision made the news a few weeks later, Christian conservatives were enraged. In late January, a score of protesters picketed the Sioux City courthouse, waving banners that said “God Hates Fags” and denouncing Neary as a “liberal activist” and a member of an “antichristic court.”
“I was just trying to settle a dispute between two people,” Neary says. But he made his decision just days before the Massachusetts Supreme Court upheld the legality of same-sex marriage in that state. Conservative Christians were ready for a fight.
In late summer 2004, Neary began preparing his race for retention. Because voters simply mark yes or no for one candidate, he hadn’t planned on running much of a campaign—Iowa judges typically win retention races with more than 75 percent of the vote. But the protests against him revived. The Iowa Family Policy Center, a local Christian activist group, summoned Colorado evangelical leader James Dobson to speak at a rally exhorting Iowans to throw Neary out of office. “Now judges are telling us they want to redefine the definition of marriage,” Dobson told the crowd. “We say not in our lifetime!” The rally was followed by radio ads and brochures depicting Neary as an out-of-control liberal hell-bent on making Iowa the national capital of same-sex marriage. In response, Neary offered to talk to anyone who wanted to know why he’d terminated the same-sex union, and even asked to meet with Dobson, though Neary later said, “I never got a phone call.”
Neary squeaked by with an embarrassing 59 percent of the vote, despite the fact that he had launched a fundraising committee that raised nearly $28,000—a huge sum for an Iowa judicial race—and bought newspaper and television ads attesting to his character. The experience has made Neary think twice before ruling on controversial cases. “When I write opinions, I will cover myself, so people know why I decided the way I did,” he says. “I will think a little bit about timing. I will sit on decisions around retention time. Yes, this experience has curtailed the third branch of government.”
Other judges share his concern, the highest profile being retired Supreme Court Justice Sandra Day O’Connor. In an unusually stark speech given at Georgetown University in early March, she asserted that “attacks on the Judiciary by some Republican leaders pose a direct threat to our constitutional freedom.” While not referring to him by name, O’Connor singled out former House GOP leader Tom DeLay for taking aim at the Supreme Court last year after its ruling in the Terry Schiavo case during a televised rally of conservative Christians called Justice Sunday. She expressed dismay over increasing physical assaults on judges as well as calls for “reforms” such as impeachments. “I am against judicial reforms driven by nakedly partisan reasoning,” she said. “The courts do have the power to make presidents, the Congress, or governors really, really angry. But if we don’t make them mad some of the time, we probably aren’t doing our jobs as judges…. We must be ever-vigilant against those who would strong-arm the Judiciary into adopting their preferred policies.”
Despite the urgency of her remarks, O’Connor was never in a position to be voted off the bench. But that’s been a real threat for judges like Loren McMaster of the California Superior Court. With the support of Tony Andrade—the man who spearheaded the petition drive that resulted in the recall of California governor Gray Davis— a conservative Christian group called Campaign for Children and Families helped mount a recall initiative against McMaster, leading him to conclude, “Some social conservatives don’t want judges making decisions without first sticking their finger in the wind.” The initiative failed, as did an effort in Missouri to oust Judge Richard Teitelman. The first Jewish (and first legally blind) judge to be appointed to Missouri’s Supreme Court, Teitelman had spent most of his legal career serving poor people—a line of work that, according to Joe Whisler, former president of the Missouri Bar Association, displeased conservative voters.
In the weeks before voters were to decide whether to keep Teitelman on the bench, he was attacked in a spate of negative advertisements. They’d been placed by Missourians Against Liberal Judges, a newly formed alliance that was assisted by speaker pro tem of the Missouri House Rep. Rod Jetton, and organizations including the Eagle Forum, the Missouri Family Network, and the Missouri branch of the National Rifle Association. Phyllis Schlafly, founder of the Eagle Forum, dispatched automated “robo-calls” to Missouri residents, saying, “Missouri voters have only one chance to vote no on liberal activist judges who rule against traditional marriage, rule for abortion, rule against gun rights, reduce the sentences of brutal murderers, and side with trial lawyers whose lawsuits are driving doctors out of our state.”
The anti-Teitelman forces “sucker-punched everybody,” Whisler recalls. Missourians Against Liberal Judges created a website, www.stopliberalmissourijudges.org, which the St. Louis Post-Dispatch said misrepresented Teitelman’s positions. The coalition raised $41,000 to unseat the judge; the Missouri Eagle Forum’s political action committee (PAC) alone spent $13,000 on the last-minute ad blitz, according to public records. In the end, Teitelman kept his judgeship with only 62.3 percent of the vote.
In the year and a half since Dobson’s Iowa rally, evangelicals not only have increasingly targeted individual judges, but they’ve worked to abolish state statutes designed to insulate judges from politics. Ironically, they’ve gone after the kinds of protections invoked by Supreme Court candidates as they sit before the Senate Judiciary Committee and refuse to tip their hand on hot-button issues like abortion. Yet the Supreme Court itself ruled in 2002 that common state rules restricting what judicial candidates could talk about were unconstitutional, opening the door to greater pressure by outside groups. In short, the principle of maintaining impartiality has been jeopardized.
Against this backdrop, the near death experiences of Judges Neary, McMaster, and Teitelman were merely practice runs in a crusade to remake state courts to fit a conservative agenda. Those judges accidentally strayed into the sights of the religious right. In the future, such confrontations promise to become more systematic, as religious conservatives across the country examine judges and smite the ones who don’t obey God’s law, as they see it, or fail to agree with their interpretation of the Constitution. With 87 percent of the nation’s 11,000 state judges having to face voters in some type of election, the right’s well-funded assault on the courts could have a tremendous impact, not just on obvious issues such as abortion, same-sex marriage, school vouchers, medical research, and school prayer, but on the way justice is delivered day by day.
“When judges have to look over their shoulders at special interests, fair and impartial justice is in real danger,” says Bert Brandenburg, executive director of the Justice at Stake Campaign, a nonpartisan organization that tracks judicial elections. “When you step into court, you want the judge focused on your rights, not on political pressure and interest-group ultimatums.”
THE UNITED STATES has a patchwork of laws governing how judges are chosen. In the nation’s early years, most states selected their judges the way the federal government did—by appointment. The democratic reform movement of the early 1800s spurred conversion to judicial elections as a way to provide greater accountability. But, notes judicial scholar Rachel Paine Caufield of the American Judicature Society, this system also had problems; some elected judges were corrupt and in the pockets of local politicians. In an effort to lessen political influ- ence, Caufield says, a dozen states switched from partisan to nonpartisan elections.
In 1940, Missouri came up with an even more aggressive plan and became the first state to switch to merit selection. Under the plan, a bipartisan screening commission recommends candidates to the governor, who then makes the final decision. After a year or more on the bench, the appointed judge must then run, unopposed, to retain his or her job. Under this practice, known as the Missouri Plan, sitting judges have rarely failed to win public approval. Currently, 15 states and the District of Columbia use a form of merit selection, and 39 states elect judges at some level.
Until the 1980s, judicial races were typically low-key, small-budget affairs. Then, as class action cases boomed, trial lawyers poured money into judicial candidacies, stacking several state supreme courts with plaintiff-friendly jurists. Defense lawyers and the businesses they represent fought back with their own deep pockets, reclaiming some seats and upping the campaign ante. The national Chamber of Commerce began vetting judges and putting money behind pro-business candidates. In 2004, judicial candidates raised $46.8 million—up from $29 million in 2002, and a $40.6 million increase over 1990.
Along with the cash came all the trappings of costly political races: television commercials, high-priced consultants, fancy fundraisers, and big-time conflicts of interest. The American Bar Association (ABA) and the American Judicature Society, alarmed that judges were collecting so much money from donors who had business before the bench, pushed for a switch to merit selection throughout the country. The National Voting Rights Institute, a Boston-based civil rights organization, sued the county of Los Angeles, claiming that the high cost of running for a judgeship discriminated against black candidates, who would be less likely than whites to raise enough money to win.
By 2004, a handful of states were poised to switch from elections to the Missouri Plan. But while reform groups were seeking to insulate judges from outside pressure, a newly radicalized group of American fundamentalists was pushing in the opposite direction. Many on the religious right felt that the third branch of government should be as accountable to the public as the legislative branch was. Their venture into judicial campaigning is an expansion of their efforts to lobby the White House on judicial nominees. “There’s nothing the matter with [judgeships] being political,” Schlafly told the Kansas City Star. Andrade agrees. “That’s what makes this country great,” he says. “That we can influence the judiciary or any other branch of government.”
Armed with their own deep pockets, the evangelicals began working against judges with whom they disagreed on such issues as school vouchers, school prayer, abortion, and, as Neary learned, same-sex marriage. “Courts are overriding the will of the people,” says Peter Brandt, senior public policy director of James Dobson’s Focus on the Family. “If we get involved in judicial elections, we might be able to change that.”
And not just by campaigning. They are attempting to reengineer judicial elections to destroy the legal measures that protect the impartiality of judges.
THE PERSON THEY HAVE TO THANK for their newfound ammunition is Greg Wersal, a conservative lawyer who in 1998 was running for the Minnesota Supreme Court for a second time. He didn’t have a chance against the incumbent, he felt, if he couldn’t tell voters his stance on pertinent legal issues. But the code of judicial ethics in Minnesota, as elsewhere, barred candidates from compromising their impartiality by discussing their views on disputed legal or political matters. This “announce clause,” as it is known, was developed by the ABA in 1972 and is in use by nine states to help maintain judicial impartiality and public faith in the courts. Twenty-five other states have imposed a “commit clause,” also developed by the ABA in 1990, which gives candidates more leeway to discuss the issues, as long as they don’t commit to a specific position. And 40 states prohibit making any “pledges or promises” about future judicial actions. (On the federal level, only judicial nominees who are sitting judges may not comment on pending cases and face a general requirement of impartiality.)
To dramatize his opposition to the announce clause, Wersal stood outside the Minnesota Supreme Court building fastened to a ball and chain labeled “Canon 5,” a reference to the section of the Minnesota Code of Judicial Conduct that includes the announce clause and other restrictions. Wersal’s children stood nearby, carrying signs that read “Free Our Dad.” Wersal had a knack for flamboyant expression; in a successive (and likewise unsuccessful) race, he traveled with a herd of life-size plywood cows, one with a placard that read “Judicial elections are a bunch of bull. Who would know better than a cow?”
In the midst of his 1998 campaign, Wersal filed suit against the Minnesota Board of Judicial Standards, charging that the announce clause violated his right to free speech. His suit caught the eye of the GOP, which joined his effort, and when the case went to the U.S. Supreme Court, it retained James Bopp Jr., a Terre Haute, Indiana, lawyer with a long conservative pedigree. The case of Republican Party of Minnesota v. White (named for Suzanne White, then head of the Board of Judicial Standards) was decided by the Supreme Court in 2002—and the decision went to Wersal.
During an interview in his office, Bopp said he believes that all judicial candidates, whether they’re appointed or elected, have a right to talk about controversial issues and cases as long as they don’t promise to rule a certain way on a specific case. But such a distinction hardly provides true protection against politicizing the courts; a candidate doesn’t need to name Roe v. Wade to indicate hostility to abortion rights. Bopp’s victory stunned the liberal judicial establishment.
“The door is now open for conservatives to rip apart carefully crafted state judicial codes designed to hedge court pressure from outside groups,” says Deborah Goldberg, an attorney with the Brennan Center for Justice at New York University School of Law. “Before the White case, there were questionnaires going around to judges, and in many cases they could say, ‘I can’t answer that.’ Now, the implicit message is that you can answer, and if you don’t, you won’t have our support.”
Not surprisingly, the White decision opened the door to a host of new surveys pressing judicial candidates to state their positions on abortion, school prayer, stem-cell research, and gay rights. “It’s about political free speech—not just for conservatives, but for liberals too,” argues Bopp. But few liberal groups have adopted the strategy as aggressively as the right.
Georgia is among the states that are now permitting candidates to discuss issues likely to arise in court. In 2004, the Christian Coalition of Georgia circulated a survey there asking state Supreme Court and appeals court candidates to disclose their positions on U.S. Supreme Court rulings on abortion, school prayer, school vouchers, and homosexual conduct. Two candidates responded—both giving answers in line with Christian Coalition positions. One of them, Grant Brantley, was challenging incumbent Leah Ward Sears, the first African American woman on the court. Sears did not respond. The coalition incorporated the candidates’ answers in a guide sent to some 725,000 voters. The booklet indicated “no response” for Sears. At the bottom of the page, the coalition listed Sears as supporting homosexual conduct, based on her support for a decision that struck down Georgia’s sodomy law. Sears prevailed with 62 percent of the vote.
Other surveys have fared less well. In Alabama in 2004, the state League of Christian Voters developed a questionnaire for state Supreme Court and circuit court candidates. Among the questions were: “Are you a born-again Christian? Please give your testimony” and “Do you believe marriage should be defined as a union between one man and one woman?” The League asked a judicial ethics panel for permission to submit its questions to the candidates. The panel declined to hear the request, angering those who felt such questions were allowed under the White decision.
“In my opinion, it was illegal and violated the Minnesota case,” says attorney Jim Zeigler, who heads the League. Zeigler says that his organization has “finessed the problem.” The finessing represents an escalation of the judicial wars: The League recruited an entire slate of candidates for open judgeships. “We encouraged conservative Christian attorneys to run,” Zeigler says. Some candidates were handpicked by former Alabama chief justice Roy Moore, who made national news when he was kicked off the bench for refusing to remove a Ten Commandments monument from the courthouse grounds. Before the primary, the League’s website noted “Alabama Christians are now more concerned than ever about electing bold Christians to these Supreme Court seats. All eight Associate Justices voted to remove the Ten Commandments, and all opposed the stand of Chief Justice Roy Moore. ALL. NONE STOOD WITH HIM, AND NONE STOOD WITH US.” Out of the three candidates the League backed, two won, including Tom Parker, a former adviser to Moore. Parker replaced Justice Jean Brown, a business-backed candidate. Zeigler says they’ve decided not to try to use the questionnaire again in 2006 but will continue to recruit judicial candidates of faith for the five seats on the Supreme Court that will be contested in 2006.
This sort of juggernaut election push is taking shape elsewhere. In Washington state, a coalition of conservative lawyers backed by the Christian Coalition formed a PAC late last year to raise money for like-minded candidates. Because Washington is one of only four states that permit donors to contribute unlimited funds to judicial and other candidates, the committee may have an enormous impact.
When the Family Foundation of Kentucky, a Focus on the Family affiliate, sent out questionnaires in 2004 probing candidates on cloning, religion, and abortion, nearly all of them declined to respond, citing the state’s code of judicial conduct, which had both a commit and a “pledges or promises” clause. Bopp sued the state on behalf of the Family Foundation, arguing that the White precedent should be applied to any restrictions. (The Supreme Court considered only the announce clause in the White case.)
The Kentucky Supreme Court ruled in favor of Bopp and the Family Foundation. Focus on the Family’s Peter Brandt exulted, “Judicial candidates who do not want to be held accountable for their decisions cannot run and hide behind judicial ethics anymore. We have a right to ask where the candidates stand on issues important” to Christians. And those aligned with the right may get a crucial boost. Supreme Court Justice Samuel Alito penned a thank-you to Dobson after his confirmation, saying that “the prayers of so many people from around the country were a palpable and powerful force,” according to Dobson. Judicial candidates in the future might be thankful not just for prayers but votes.
That prospect makes people like Kentucky Chief Justice Joseph Lambert worry that the tenor of judicial campaigns will deteriorate. One group of concerned lawyers has come together to form the Georgia Committee for Ethical Judicial Campaigns, whose chairman, William Ide, asked judicial candidates to sign yet another pledge: a refusal to indicate how they might rule in future cases. Essentially, they were asked to ignore the conservative campaign questionnaires.When Sadie Fields, chair of the Christian Coalition of Georgia, heard about Ide’s request, she invoked White. “The courts have declared that we do have a right to learn about the philosophy of judicial candidates,” Fields told the Fulton County Daily Report.
Resistance in other states is likewise encountering conservative ire. By Bopp’s count, at least 40 states are defying the White precedent by instructing judicial candidates not to respond to surveys or answer questions on hot-button issues. He has sued six states total and has so far prevailed in three: Alaska, North Dakota, and Kentucky; the Indiana and North Carolina cases are pending.
While some states have chosen to ignore White, a different tack was tried in South Dakota, where state Circuit Court Judge David Gienapp and others, wary of the ground shifting in neighboring Minnesota, pushed the state to adopt merit selection in 2004. “We wanted to keep the judiciary independent and didn’t want special interests invading our judicial elections,” Gienapp says. Their effort took the form of support for a state referendum called Amendment A.
Amendment A was supported by the majority of South Dakota state legislators, lawyers, and judges, and even by the Republican governor, Mike Rounds. But Dobson, flushed with success from the White decision and eager to mobilize voters in South Dakota, urged tens of thousands of Christian voters at the LifeLight Festival, a musical religious gathering, to reject merit selection. “Get informed, register, go to the polls, and vote in November,” Dobson told concertgoers. Amendment A went down in flames—62 to 38 percent. Tom Fritz, a former president of the South Dakota Bar Association, explains that once Dobson started rallying his troops, Amendment A supporters had a tough time educating the public about the real implications of continuing to have judicial elections. “They were highly organized and effective,” Fritz says of Dobson and his allies. “I’ve never seen anything like it.”
SO FAR, MOST OF the social conservatives’ attempts to unseat judges have failed. (In Kentucky, where more than 250 judicial seats are being contested this year, judicial officials are trying to head off inappropriate conduct by holding educational sessions for candidates.) Still, conservatives are having a large and increasing impact on the judicial selection process, says Roy Schotland, a law professor at Georgetown University. “The right is hot, hot, hot against judges,” he says. “Drawing attention to the courts and banging on judges is natural for them, and, I believe, even helps their side’s turnout for other races.” And, as O’Connor warned in her speech last March, such efforts have an impact beyond the fate of any one judge or the outcome of a single case. Invoking the experience of developing, or formerly communist, countries where dictatorships have been allowed to flourish, she noted that, according to NPR, “the nation’s founders wrote repeatedly that without an independent Judiciary to protect individual rights from the other branches of government, those rights and privileges would amount to nothing.”
After he was attacked, Jeffrey Neary mounted his own effort to inform the public about what judges are actually supposed to do—uphold the law. In a democracy, he said, sometimes “we have to make decisions that are unpopular but that are based in the law.”
But even as he argued on the judicial merits, Neary felt he was a pawn in a larger, and very lucrative, game. He notes the rich financial haul that Dobson got for a new PAC he formed in April 2004: Focus on the Family Action, a 501(c)(4), provides the evangelist with a means to support legislative and political issues while keeping Focus on the Family’s tax status as a nonprofit organization. Focus Action’s tax filing for 2004 reports that in its first six months of existence, the group raised $8.8 million. The PAC spent $884,248 on six “Stand for the Family” rallies around the country and has an agenda that includes ousting judges. “These rallies touched approximately 38,000 people, communicating the responsibilities of Christians to vote in November 2004 based on their conscience and values,” according to the report. The group also spent $2 million on newsletters, emails, and articles promoting its agenda to 1.2 million households and $899,763 on radio broadcasts concerning “public policy issues and how listeners can become involved in effecting legislation” important to Christians.
Meanwhile, the far right’s strategy escalates. Peter Brandt says that Christian conservatives will focus on dozens of judges this year, when 30 states will hold supreme court races. They will continue to press judicial candidates through questionnaires, mobilize their grassroots members to oust unsuitable judges, and, Brandt says, “where opportunities arise, we would like to impeach judges.”
The group’s target: any judges anywhere who have ruled against marriage, as conservatives define it, or—to cite a common rallying cry—against the “rights of the unborn.”
“We’re better organized,” says Brandt, “and ready for the next round.”