For 40 years, an incumbent Wisconsin Supreme Court justice never lost an election—not, that is, until this month, when a business-backed circuit judge narrowly defeated the first African-American to serve on the state’s highest court.
But the victory of Michael Gableman over Louis Butler was stands out because the race came with such cost, partisanship, and confrontation—hardball trends that are expected to appear in judicial races nationwide. At an estimated $5 million, the cost of the Wisconsin race set records, and its campaign ads—largely sponsored by outside groups—were so negative and in some cases so misleading that they were criticized by a state watchdog group. One of Gableman’s ads falsely implied that Butler had gotten out of jail a convicted rapist who then committed a second sexual assault. (In fact, the second assault occurred after the man served his full sentence.) Another ad by the pro-Butler teachers union accused Gableman of sentencing child sex offenders far below the maximum, but it used the example of an offender who received a higher sentence than the one the prosecutor recommended.
The tactics in the Wisconsin race illustrate a shift in judicial elections nationwide. There are nearly 40 other state Supreme Court races ahead this year, some of which are already gaining attention—particularly in states where the outcome could tilt the political balance of the court. The Mississippi high court has four seats up for election; Washington has three; and in West Virginia, where half of the five-member Supreme Court has come under scrutiny over connections to a top businessman and campaign contributor, two seats are contested.
Though costly and contested judicial elections have long been common in states like Ohio and Illinois, the battleground has now spread to places more commonly known for more civil judicial politics. The change is in large part driven by the growth of tort reform in state electoral politics. Often state courts have the final say in tort reform laws, so both business and plaintiffs’ lawyers are now putting more money into supporting friendly judicial candidates. Fueling the contests is a 2002 U.S. Supreme Court ruling that held that Minnesota’s rule barring judicial candidates from discussing political issues violated their First Amendment rights. Judicial candidates were now free to take political stances on hot-button topics like abortion and civil rights.
Indeed, the median amount raised in judicial campaigns in 2006 was $243,910, up from $201,623 six years before. In 2006, five of the 10 states with private financing set spending records, including Alabama, which raised $13.4 million in five state Supreme Court races, according to the Brennan Center for Justice. Outside groups have added to these amounts, spending 2½ times more on television ads in the 2004 and 2006 cycles than in the previous two. And increasingly, this money is coming from the business community, which represented 44 percent of all campaign money—twice the percentage of donations from lawyers, according to the Brennan Center.
It’s not only judicial elections that are coming under scrutiny this year. In a handful of states, merit-based selection panels are facing questions of political manipulation and attracting the interest of groups like the Federalist Society. Under the merit system, various panels, composed of governors’ appointees and lawyers, usually appointed by the state bar, nominate candidates for appointment by the governor. Colorado state judges are selected through merit selection, a process developed to remove judges from political activity such as holding political office, making or receiving campaign contributions, endorsing political
candidates and participating in political campaigns. Colorado is divided into 22 judicial districts comprised of from one to seven counties. Every judicial district has a Judicial Nominating Committee and Commission on Judicial Performance. One Judicial Disciplinary Commission serves the entire state.
But that doesn’t mean the state judges are immune from political strife. In 2006, an attempt to limit the term of appellate court judges failed. Another example is the ongoing effort being mounted by Coloradan Rick Stanley. Stanley and others from the “Liberty Initiatives Group” are proposing a ballot initiative for 2008, the “Colorado Judicial Accountability Act.” The act would amend the Colorado Constitution and impose “personal liability” on judges, limit indemnification of judges for damages they would be liable for, and remove judges from office after three instances of misconduct.