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About Justice at Stake
December 1, 2008
in this issue. . . U.S. Supreme Court Accepts Caperton Case
Brandenburg Article in Slate Magazine
2008 TV Spending Exceeds Previous Cycle
Alabama Race Ends Amid Calls for Reform
NC’s Public Financing a Success
Website Revision for Justice at Stake
U.S. SUPREME COURT ACCEPTS CAPERTON CASE The Supreme Court will hear a potentially landmark judicial ethics case, deciding whether judges must sometimes remove themselves from cases involving those who helped them get elected.
The court announced it would hear Caperton v. Massey, a case in which a coal executive spent more than $3 million to elect a West Virginia Supreme Court justice in 2004. That justice, Brent
D. Benjamin, later cast the deciding vote to overturn a $50 million judgment against the executive’s company. The court’s action is discussed in articles by the Associated Press and the Blog of the Legal Times.
Caperton v. Massey has enormous significance in an era in which competing special interests have spent heavily to elect friendly state Supreme Court justices. A Justice at Stake poll showed that three in four Americans believe that campaign contributions can influence a judge’s decisions in court.
Contact Information Justice at Stake Campaign
717 D Street, NW Suite 203 Washington, DC 20004
Telephone:
202 ­588 ­9700 While litigants can ask a judge to step aside, most states, including West Virginia, give judges the final word on whether their impartiality
has been compromised. In seeking U.S. Supreme Court intervention, lead counsel Theodore Olson argued that Caperton ’s right to equal protection under the law was violated by Justice Benjamin’s refusal to step aside.
The Brennan Center for Justice, which wrote an amicus brief urging the court to take the case, issued this press release. The release includes links to Brennan’s web page on the Caperton case, as well as a recent New York Times editorial that called on the court to hear Caperton.
Fax:
202 ­588 ­9485 Arguments before the Supreme court are expected to begin in March or April.
justiceatstake.org
Further postings on Caperton v. Massey can be found in Gavel Grab.
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BRANDENBURG ARTICLE IN SLATE MAGAZINE Should business invest itself in a growing campaign against meritselection of judges? That ’s the topic of “What’sthe Best Way to Pack a Court?,”an article by Justice at StakeExecutive Director Bert Brandenburg that appeared recently in Slate Magazine.
The article outlines how a constellation of groups has worked to undermine merit selection in Missouri, Tennessee and Kansas. Those players include the American Justice Partnership, the Wall judges? That ’s the topic of “What’sthe Best Way to Pack a Court?,”an article by Justice at StakeExecutive Director Bert Brandenburg that appeared recently in Slate Magazine.
The article outlines how a constellation of groups has worked to undermine merit selection in Missouri, Tennessee and Kansas. Those players include the American Justice Partnership, the Wall Street Journal editorial page, some state­level chapters of the Federalist Society and in some cases the PR firm known for the 2004 “Swift Boat” ads.
Brandenburg suggests that the real goal is to open up new courts to elections that can be swayed by outside groups —even though this year that strategy may have partially backfired, when three chief justices were voted out after being painted as too close to business. Indeed, many business leaders aren ’t biting on the anti ­
merit pitch, because they prefer stable courts whose direction can ’t be swiftly changed through a special­interest election campaign, and because
statistics show that businesses generally fare better in states that use a system of judicial appointment and retention elections:
A 2007 Zogby poll [PDF] showed that 71 percent of business executives supported merit selection. This presumably stems from a distaste for politicized courts and a preference for high­quality judges. In fact, the U.S. Chamber of Commerce’s own survey of in­house corporate litigators shows that of the 20 states the chamber ranked as best for business, only two elect their high courts. In Missouri, a study from the conservative Show ­Me Institute called merit selection “superior ” for promoting free­market goals.* “I must say that I find it really odd that business groups have gone off on this kick,” the Manhattan Institute’s Walter Olson wrote this summer.
To see the full column, click here. To see other Gavel Grab listings on merit selection, click here.
2008 TV SPENDING EXCEEDS PREVIOUS CYCLE Wrapping up an election year in which TV spending for Supreme Court candidates soared in
the final weeks, the Brennan Center has reported
that total spending this year was 24 percent greater than in the 2006 cycle.
In its final “Buying Time 2008″ report, Brennan said that:
Candidates, interest groups, and political parties combined to spend $19,861,269 on television advertisements in state Supreme Court elections nationwide this year, announced two national watchdog groups. That figure is up 24 percent from 2006, when they spent barely more than $16 million.
Spending skyrocketed in the week and a half before the election. Between October 24 and November 4 spending on TV ads jumped $7,703,954, up from $12,157,315. Michigan and Alabama joined Wisconsin, where candidates and interest groups there combined to spend $3,789,157 before the general election earlier in the spring, in surpassing $3 million on TV advertising. Spending on advertising in Michigan totaled $3,644,179 and in Alabama total spending on TV advertising was $3,538,361.
To see the Brennan Center press release, click here. To see Brennan ’s “Buying Time 2008″ page,
which offers storyboards and videos of ads in advertising. Spending on advertising in Michigan totaled $3,644,179 and in Alabama total spending on TV advertising was $3,538,361.
To see the Brennan Center press release, click here. To see Brennan ’s “Buying Time 2008″ page,
which offers storyboards and videos of ads in different states, click here.
Justice at Stake ’s post­election report is here. ALABAMA RACE ENDS AMID CALLS FOR REFORM It took ten days before Judge Deborah Bell Paseur finally conceded to Judge Greg Shaw, ending an Alabama Supreme Court race whose tone and ”obscene ” cost sparked complaints from
state newspapers and the president of the American Bar Association.
The candidates raised a total of $3.8 million, according to their last pre­election filings, the costliest race in the United States this year. In addition, the Virginia­based Center for Individual Freedom spent $965,000 on an independent TV ad campaign, according to data from the Brennan
Center for Justice.
The free spending, and frequently edgy tone of the campaign, prompted complaints from newspapers, and from H. Thomas Wells Jr., a Birmingham lawyer who is president of the American Bar Association.
After an ABA statement decried the expense of this year’s state Supreme Court races, Wells told the Associated Press:
“Quite frankly, I was deeply disappointed in both candidates. More was spent on that race than was spent providing access to the courts for people of limited means. That was obscene. ” Wells ’s concerns were echoed in a series of newspaper editorials criticizing the race, and Alabama’s continuing place as the most expensive
state in the nation for Supreme Court elections. A
Montgomery Advertiser editorial suggested switching to an appointive system, while a DeKalb County Times­Journal editorial said, “We need a better way to select Alabama Judges.” The Opelika Auburn News said the high
spending left a “sour taste. ” The race also inspired this political cartoon in the
Mobile Press­Register. To learn more about Alabama ’s election this year, see previous Gavel Grab postings.
NC’S PUBLIC FINANCING A SUCCESS In one of the bright spots of the 2008 election system, North Carolina has shown once again that public financing of judicial races can work.
Two candidates for one Supreme Court seat and nine candidates for five Court of Appeals NC’S PUBLIC FINANCING A SUCCESS In one of the bright spots of the 2008 election system, North Carolina has shown once again that public financing of judicial races can work.
Two candidates for one Supreme Court seat and nine candidates for five Court of Appeals seats ­11 of the 12 appellate candidates on the ballot this year ­opted into the state ’s voluntary public financing system. In all, the state fund provided $467,250 to the Supreme Court candidates while $1,440,000 was given to the Court of Appeals candidates. The official numbers have not yet been tabulated for this cycle to determine if the public financing system retarded the influence of outside money. In 2004, the first election under the program, the percentage of total dollars given by attorneys and/or special ­interest committees fell from 73% to just 14%.
Candidates must raise a certain amount of private
funds during the primary to qualify. Candidates then can receive a lump sum grant to use in the general election, if they agree to abide by strict spending guidelines.
To read more about the North Carolina results, click here. To read an analysis of the Public Financing program’s performance in 2004, click here. WEBSITE REVISION FOR JUSTICE AT STAKE Justice at Stake is undergoing a major website redesign, which is expected to be completed early
next year. To address technical problems with our original web page, including severe time delays, we have established a scaled­back temporary site, at www.justiceatstake.org. This temporary site makes available news releases, Justice at Stake publications, www.gavelgrab.org, and other major JAS resources. It also enables you to link to the original Justice at Stake page to find any other materials you need. To stay on top of issues affecting fair and impartial courts, visit Gavel Grab, the daily online journal of Justice at Stake.
Justice at Stake is a nonpartisan national campaign of 50 partners working to keep our courts fair, impartial and independent. Justice at Stake Campaign partners educate the public and work for reforms to keep politics and special interests out of the courtroom—so judges can do their job protecting our Constitution, our
rights and the rule of law.
The positions and policies of Justice at Stake campaign
partners, directors and staff are their own, and do not necessarily reflect those of other campaign partners.