This article originally provided by The New York Times

April 15, 2008

Editorial Observer

The Selling of the Judiciary: Campaign Cash ‘in the Courtroom’

By DOROTHY SAMUELS

“We put cash in the courtrooms, and it’s just wrong,” Sandra Day O’Connor, the former Supreme Court justice, declared at the start of a conference in New York last week on a growing threat to judicial independence and integrity: the escalating millions that special interests are pouring into state judicial elections in an effort to buy favorable rulings.

The substance of her remarks was no surprise. Since retiring in 2006, Justice O’Connor has devoted herself to spreading the word about assaults on judicial independence and the bedrock principle of impartial justice — including from big-money state judicial campaigns. Still, it was startling to hear a former member of the nation’s highest court speak about the problem in such stark terms. No question, her alarm is well-founded.

Thirty-nine states elect at least some of their judges. On top of the inappropriate judicial involvement in partisan politics, recent years have seen the dawn of a grubby new era of multimillion-dollar campaigns for important state judgeships. They include 15- and 30-second attack ads, a staple of competitive races for top executive and legislative posts. These slugfests are largely underwritten by well-heeled interest groups — including insurance companies, tobacco firms, the building and health care industries, unions and trial lawyers — that have seized upon judicial contests as a promising avenue for influence-peddling.

The implications for the nation’s justice system are enormous. About 95 percent of cases are handled by state courts rather than appointed federal judges, notes Justice Stephen Breyer, who appeared at the Fordham Law School conference with his former colleague. Experts expect that 2008 will be another banner year for raucous and expensive judicial races.

The perception that money is corrupting the courts would be damaging enough. But often, it seems, special interests are finding that buying up judges likely to side with them in big-dollar cases is a good investment — the real-life grist for John Grisham’s new fictional legal thriller, “The Appeal.”

Events this month in Wisconsin and West Virginia only deepen these concerns. On April 1, the first and only African-American member of the Wisconsin Supreme Court, Louis Butler, lost his seat after a nasty, racially charged campaign in which his opponent, Michael Gableman, was aided by a barrage of TV advertising, paid for by the state’s largest business lobby.

In West Virginia, meanwhile, the State Supreme Court’s handling of a case involving a large coal company, Massey Energy, took on a decidedly farcical flavor. For the second time, the appellate court threw out a $50 million verdict against Massey.

The court decided to rehear the case after photographs publicly surfaced of its chief justice, Elliott Maynard, vacationing in Monte Carlo with Massey’s chief executive, Don Blankenship, in 2006, while the matter was pending in the Supreme Court. The chief justice disqualified himself from the rehearing. So did another justice, Larry Starcher, because he had publicly criticized Blankenship and his company. The 3-to-2 outcome in favor of Massey was unchanged from the first round, which might not have been noteworthy except that the deciding vote was cast once again by Justice Brent Benjamin, who declined to recuse himself despite owing his election to the court to more than $3 million spent by Mr. Blankenship.

In response to such travesties, judicial reformers have stepped up their call for public financing and strict fund-raising rules for state judicial contests or a switch to a nonelective merit selection system.

But with states in no rush to make these changes, a new report from the Brennan Center for Justice smartly focuses on an effective if less sweeping antidote that would be more achievable in the short-term: persuading jurisdictions to strengthen their recusal rules.

Surely special interests would be less inclined to invest so heavily in judicial elections if they knew the recipients of their largess likely would be barred from sitting on their cases.