Judicial Elections, Unhinged
This year’s round of state judicial elections broke previous records for the amounts spent on judicial campaigns around the country. The dominant role played by special-interest money — including money from super PACs financed by undisclosed donors — has severely weakened the principle of fair and impartial courts.
In Florida, for example, three respected State Supreme Court justices won their retention election battles, but only after they were forced to raise more than $1.5 million in total. They had put on expensive campaigns because they were targeted for defeat by moneyed conservatives who wanted to drive them off the bench for their supposed liberal views. The justices were absolutely right to fight back. Still, the bitter campaigns leave impressions of judicial partisanship and indebtedness to campaign donors.
Nationally, spending on television advertisements in state supreme court races reached nearly $28 million by Election Day, exceeding the $24.4 million in 2004, the previous record for a presidential election year, according to the Brennan Center for Justice and Justice at Stake, nonpartisan groups working for fair courts. Groups not connected to candidate campaigns paid for more than half of the TV ads run, compared with about 30 percent in 2010, making it much harder for candidates to control their own message.
In Michigan, where three of seven seats on the State Supreme Court were up for election, records were set for both spending and lack of accountability. The $3.2 million raised by candidates and reported to the Michigan Bureau of Elections was dwarfed by unreported spending by the political parties and outside groups interested in tilting the balance on the court. One ad run by an independent group against Bridget McCormack, a Democratic candidate for a seat on the court, featured the mother of a soldier killed in Afghanistan and suggested that Ms. McCormack’s legal work for a detainee released from Guantánamo Bay in 2007 showed support for terrorism. Ms. McCormack won the race.
Of the $15 million or so spent for TV ads in Michigan, 75 percent cannot be attributed to identifiable donors, notes Rich Robinson, executive director of the Michigan Campaign Finance Network, which advocates changing Michigan law to bar undisclosed independent spending. That exceeds even the 2010 record, when half the total spending on Michigan Supreme Court races came from secret sources.
Regrettably, states that elect their top judges show no inclination to address these distressing trends by replacing judicial elections with systems of merit appointment that avoid retention votes. This year’s experience should at least hasten state efforts to revise rules for judicial recusal to take campaign contributions into account. Mandatory disclosure of all donations to a judicial race is also essential. Litigants cannot know when they should request that a judge step aside if they cannot tell whether their case involves a party that supported the judge’s campaign.
A version of this editorial appeared in print on Nov. 19, on page A20 of the New York Times with the headline “Judicial Elections, Unhinged.”