Is 'justice for sale'?

The first comprehensive analysis of state  judicial elections during the past decade,  “The New Politics of Judicial Elections, 2000-2009:  Decade of Change,” was released this week by the Brennan Center for Justice at NYU School of Law, the Justice at Stake Campaign, and the National Institute on Money in State Politics.

Across the country spending on judicial elections more than doubled during the past decade, increasing from $83.3 million in 1990-1999 to $206.9 million in 2000-2009.   Campaign fundraising exceeded $45 million in three of the last five Supreme elections cycles and the last decade witnessed the highest ever spent on individual contests in 20 of the 22 states with competitive judicial elections.

Justice Sandra Day O’Connor, a strong advocate for judicial reform since her retirement from the U.S. Supreme Court, cautioned in the report’s forward that the

“crisis of confidence in the judiciary is real and growing.  Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”

According to the report, concern over the significant growth in judicial campaign spending is bipartisan and widespread.  Three out of four Americans believe that campaign spending influences courtroom decisions  and forty-six percent of state judges agree that election spending is impacting courtroom results.

What is responsible for the dramatic change in judicial spending?

Several key findings in the report:

  • Focus of judicial elections progressively shifting away from  competence and fairness towards promises of post-election courtroom results.
  • Small group of ‘super spenders’ making the contributions of small donors less relevant.
  • The ongoing escalation of TV ad spending creating a need for contributions only special interests can fill.
  • Efforts of special interests to dismantle spending limits, abolish existing merit-based judge selection, and attack existing campaign fundraising disclosure laws.
  • Growing trend of campaign contributors utilizing shell organizations to conceal their election spending.

In response to growing public concern a handful of states (MI, NM, NC, WV, and WI) have considered public financing of judicial elections, reforming judicial appointment/retention election systems, and instituting more rigorous ethics rules to require judges to abstain from cases involving their financial supporters.

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