Keep the courts free and fair: the influence of special interests and partisan politics threatens the independence of judges and the rights of all Americans. But groups are unifying to counter the trend.

America's courts are under fire. At both the federal and state levels, the influence of tort reformers" and other special interests threatens the courts' independence. Groups like the U.S. Chamber of Commerce and the American Tort Reform Association are targeting the judges who uphold our laws and protect our rights. The stakes--the fairness and impartiality of our judicial system--couldn't be higher.

More than 95 percent of America's lawsuits are tried before state judges. In all but 11 states, judges are elected. Over the last decade, special interest groups have ramped up their involvement in judicial races, which have come to resemble modern political campaigns.

In 2000, state supreme court election campaigns raised $45.6 million--a 61 percent increase over 1998, and double the amount raised in 1994. Powerful national and local interest groups like the Chamber of Commerce spend millions on TV ads to support candidates that they favor. (1)

For example, even in an off-year cycle such as the 2001-2002 election, special interests spent more than $2.2 million on ads. In 2000, four groups, including the Chamber of Commerce and Citizens for a Sound Economy, took out campaign ads; by 2002 the list had more than doubled to include the American Taxpayers Alliance, Idahoans for Tax Reform, and the Law Enforcement Alliance of America. (2)

Forbes magazine reports that two years ago in Mississippi, the U.S. Chamber of Commerce poured over $1 million into a successful bid to unseat Justice Chuck McRea, who, in their view, was antibusiness. (3) (3) More than three in four voters believe that donors to judges' campaigns get special treatment in court--and 26 percent of judges agree. (4)

These politically motivated interest groups are rushing to fill an information vacuum: Many voters do not have enough information about judicial candidates. Only 13 percent say they have a "great deal" of information about candidates in these contests. (5) So they do one of two things: Either they do not vote at all, or they make their choice based on name recognition or gender or political affiliation.

The average cost of a victorious state supreme court campaign has been rising for years. In 2002, state supreme court candidates in Ohio and

Illinois set new spending records. Indeed, the number of state supreme court campaigns that ran television ads doubled from 2000 to 2002. In 9 out of 11 races where ads ran in 2002, the candidate with the most air time--funded by his or her campaign and supportive interest groups combined--won the election. (6)

Interest groups are the hatchet men of these campaigns. In the 2002 Ohio supreme court elections, for example, nearly four out of five TV ads paid for by the candidates bore positive messages, while nearly 50 percent of those paid for by special interest groups were negative. (7)

Many of these ads misrepresent a judge's record on the bench, and some even question the judge's integrity. Citizens for a Strong Ohio, a Chamber of Commerce surrogate, ran ads accusing Ohio Justice Alice Robie Resnick of selling bet vote to trial lawyers in return for campaign contributions.

If these trends continue, the 2004 state supreme court elections in 29 states will be the first full election cycle in which some judicial candidates will test the boundaries of Republican Party v. White. (8) In White, the U.S. Supreme Court struck down Minnesota's "announce clause," which prohibited judicial candidates from "announcing their views on disputed legal and political issues."

Some judicial candidates have already used White as an invitation to speak freely on controversial issues like abortion, gun control, or the death penalty. And many special interests are already looking for ways to leverage their election-season influence.

A national survey of registered voters by Zogby International explained the White decision and asked if voters were concerned about its possible effects. The poll found that 82 percent of Americans worry that special interest groups may be using White to pressure candidates on hot-button issues and that 72 percent worry that campaign contributions influence judges' decisions. (9)

Improving campaigns

But there is good news, too. Across the United States, a network of organizations is working to educate citizens about the importance of judicial independence. Alter the contentious 2000 campaigns, some of these groups, including ATLA, the American Bar Association, and the National Center for State Courts, united to create the Justice at Stake Campaign, a national nonpartisan effort to keep courts fair and impartial.

These groups have shown that they can win legislative backing to overhaul the financing of judicial elections. In 2002, for example, North Carolina became the first state to provide full public financing of appellate judicial campaigns, freeing candidates from fundraising. Participating candidates agree to limits on campaign spending in exchange for public financing. (10) This system eliminates the appearance of impropriety when litigants make campaign donations to judges before whom they are likely to appear in court. Other states, including Illinois, West Virginia, and Wisconsin, are considering public financing of judicial elections.

Following the landmark McConnell v. Federal Election Commission decision--in which the U.S. Supreme Court upheld many provisions of the McCain-Feingold campaign-finance-reform bill (11)--some states are looking at ways to make donor disclosure mandatory. This could stem the slash-and-burn TV advertising campaigns by anonymous sponsors. McConnell has empowered state legislators to write campaign finance laws that hold candidates and interest groups in state campaigns to standards of public accountability and transparency.

And other states are questioning whether high court judges should be elected at all. Pennsylvania, for example, is considering a merit selection plan, in which candidates would be screened by an independent panel of citizens appointed by the governor and legislative leaders from both parties before appointment, and would face periodic retention elections to stay in office. Nineteen other states pick their high court judges in this fashion.

However, as long as most state judges are elected, voter education will remain critical. The Justice at Stake Campaign's Informed Voter Initiative, in collaboration with its network of national and state partners, will promote judicial voter guides and study the use of voter guides and their influence on judicial elections. The project will encourage the use of online voter guides in Illinois, Michigan, Ohio, and other states, produced by local bar associations or civic organizations. (12)

Campaign monitoring is another solution to special interest influence. Conduct committees--some government-sponsored, others set up by bar associations or private groups--work with candidates to raise the standards of judicial campaigns and curb inappropriate conduct.

In 2002, 11 state chapters of the League of Women Voters ran citizen "campaign watch" programs, which used conduct committees and the Higher Ground Standards promulgated by the Constitution Project, another Justice at Stake Campaign partner. These standards set forth principles of what is acceptable conduct in a judicial campaign--and what is not. The "campaign watch" programs alerted the public to conduct by candidates or special interests that violated the standards. The National Center for State Courts has established an ad hoc committee that offers help and training to individuals who want to set up judicial campaign oversight committees. (13)

These committees work. After the contentious 1994 and 1996 state supreme court elections in Alabama, a state conduct committee was credited with greatly improving the tone and conduct of the 1998 and 2000 high court races by meeting with the candidates to review the canons of judicial ethics and convincing most to sign a "clean campaign" pledge. The committee also responded to more than 350 formal candidate inquiries regarding permissible campaign behavior. (14)

Intimidation and 'court-stripping'

In addition to electoral pressures, the courts face other challenges to their independence: efforts to intimidate judges and strip jurisdiction in retaliation for unpopular decisions.

Like any powerful public servants, judges must be accountable for their decisions, but criticism can cross the line into intimidation. This tactic is hardly new: "We must take action to save the Constitution from the Court," complained a frustrated Franklin Delano Roosevelt as he sought to pack the Supreme Court with additional justices friendly to his policies and goad the sitting justices into ruling his way. (15)

Similarly, when political leaders threaten to impeach a judge for unpopular decisions rather than misconduct, they're often sending a message to judges and others that it's time to toe the political line. Rep. Tom Feeney (R-Fla.), discussing a resolution before Congress that criticizes the Supreme Court for considering foreign laws in its deliberations, said, "To the extent they deliberately ignore Congress's admonishment, they are no longer engaging in 'good behavior' in the meaning of the Constitution, and they may" subject themselves to the ultimate remedy, which would be impeachment." (16) Only 13 federal judges have ever been impeached, (17) but no threat can be taken lightly.

Impeachment threats are not the only way to intimidate judges. Last year, with the so-called Feeney amendment--which seeks to reduce the number of downward departures from criminal sentencing guidelines--Congress for the first time required that the U.S. Sentencing Commission collect information on individual judges' departures, even though aggregate data can be used to analyze sentencing trends. (18)

Chief Justice William Rehnquist called the requirement "somewhat troubling" and warned of its implications: "The subject matter of the questions Congress may pose about judges' decisions, and whether they target the judicial decisions of individual federal judges, could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties." (19)

State legislators also know how to threaten judges. In Iowa, the speaker of the house and a state senator urged citizens to vote out of office the state supreme court justices who ruled that the legislature could not tax inland casinos at a higher rate than riverboats. (20) In January, Colorado state senate president John Andrews, unhappy with decisions on redistricting and school vouchers, proposed term limits for state judges. (21)

Politicians also periodically engage in so-called court-stripping--trying to remove jurisdiction and discretion from the courts after unpopular rulings. For example, in the 1990s, Congress passed legislation curbing judicial review in cases involving the death penalty, asylum, deportation, and prison conditions. During the 1960s and 1970s, court rulings on controversial social issues like the draft, Miranda warnings, busing, school prayer, and abortion sparked similar efforts to reduce judicial power. (22)

A new wave of court-stripping has emerged. The USA PATRIOT Act limits judicial discretion to review law enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records, and share wiretaps with intelligence agencies. (23)

The Feeney amendment sharply limited federal judges' ability to depart downward from the Federal Sentencing Guidelines in many criminal cases, and required them to provide written justification for such departures. (24) The amendment passed without a single hearing or any effort to seek judges' views. (25)

In a speech to the American Bar Association last year, Supreme Court Justice Anthony Kennedy said, "The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way. Most of the sentencing discretion should be with the judge, not the prosecutors." (26)

Last fall, the Judicial Conference of the United States, the federal courts' policy-making arm, overwhelmingly passed a resolution urging the amendment's repeal. (27)

The so-called Class Action Fairness Act would move all state class action lawsuits seeking total damages over $5 million into federal court, unless two-thirds of the plaintiffs were from the same state. as the primary defendant. (28) The Conference of Chief Justices has long opposed such a move, calling it "an unwarranted incursion on the principles of judicial federalism underlying our system of government." (29)

Social controversies often tempt lawmakers to weaken the courts:

* After a state judicial ethics panel ousted Alabama Chief Justice Roy Moore from the bench for ignoring a court order to remove a Ten Commandments monument from the state supreme court, members of both the House--Robert Aderholt (R-Ala.) and 24 cosponsors--and Senate--Richard Shelby (R-Ala.) and 5 cosponsors--introduced the Constitution Restoration Act, which would strip federal jurisdiction from any suit involving a government official's "acknowledgment of God as the sovereign source of law, liberty, or government." (30) The act also calls for impeaching any judge caught exceeding his or her jurisdiction.

* After last year's Ninth Circuit decision barring the requirement that student's recite the Pledge of Allegiance, House Majority. Leader Tom DeLay (R-Tex.) vowed to strip federal jurisdiction to rule on the pledge if the Supreme Court doesn't reverse the decision. (31)

* In March, Rep. Ron Lewis (R-Ky.) introduced a bill that would allow Congress to reverse any Supreme Court decision that struck down a law on constitutional grounds. (32)

The states have seen similar efforts, For example, the Ohio legislature removed its high court's power to set rules on situations when med-mal cases could be brought; that attempt at court-stripping was thwarted when the state high court found the statute unconstitutional. (33) In Florida, the legislature is considering removing the high court's power to set rules for prisoners seeking DNA testing to prove their innocence. (34)

Protecting the courts

Since court-stripping efforts and other attacks on our courts come primarily from legislators, the remedy is both easy and hard. Lawmakers know that courts and judges are useful political punching bags, but they are also sensitive to public disapproval.

As officers of the court, attorneys have a special role in teaching the public about these threats. Lawyers can be a powerful force for public education, speaking before associations, writing op-ed articles and letters to the editor, and urging legislators to respect the unique role of our courts.

In this election year, all who value fair, impartial courts should help educate the public on the importance and fragility of what Chief Justice Rehnquist calls the "crown jewel" of our democracy--an independent judiciary.

Notes

(1.) Alliance for Better Campaigns, As State Judicial Campaigns Grow Costlier and Nastier, One Business Group Says: Let's Call the Whole Thing Off, POL. STANDARD, Aug. 2002, at 1, available at www.bettercampaigns.org/standard/display.php? StoryID=250 (last visited May 26, 2004).

(2.) DEBORAH GOLDBERG ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 9 (Feb. 2002); see id. at 16, available at www.justiceatstake.org/files/JASMoneyReport.pdf (last visited May 26, 2004).

(3.) Robert Lenzner & Matthew Miller, Buying Justice, FORBES, July 21, 2003, at 1, available at www.forbes.com/free_forbes/2003/0721/064.html (last visited May 26, 2004).

(4.) Memorandum from Start Greenberg, Chairman and GEO, Greenberg Rosner Research, and Linda A. DiVall, President, American Viewpoint, to Geri Palast, Executive Director, Justice at Stake Campaign (Feb. 14, 2002), available at www.justiceatstake.org/files/Pollingsummary FINAL.pdf (last visited May 20, 2004).

(5.) Id. at 2.

(6.) DEBORAH GOLDBERG ET AL., THE NEW POLITICS OF JUDICIAL ELECTIONS 2002, 9 (Mar. 2004), available at www.brennancenter.org/programs/downloads/ New%20Politics%20of%20Judicia%23274.pdf (last visited May 26, 2004).

(7.) Id. at 33.

(8.) 536 U.S. 765 (2002).

(9.) Press Release, Justice at Stake Campaign, Special Interests, Big Money Increasingly Dominate Court Elections, Says Report on Races (May 6, 2004), available at www.faircourts.org/files/NewPolitics 2002PressRelease.pdf (last visited May 26, 2004).

(10.) 2002 N.C. Sess. Laws 158.

(11.) 124 S. Ct. 619 (2003).

(12.) Some states produce state-sponsored voter guides that include profiles of legislative, executive, and judicial candidates. See Learn About the New Law, at www.ncjudges.org, (last visited May 26, 2004).

(13.) Barbara Reed & Roy A. Schotland, Where Do Judicial Campaign Conduct Committees Fit in the Overall Picture?, 35 IND. LAW REV. 781 (2002), available at www.judicialcampaignconduct.org/schotlandarticle.pdf (last visited May 26, 2004).

(14.) DANIEL BECKER & MALLA REDDICK, JUDICIAL SELECTION REFORM: EXAMPLES FROM SIX STATES 11 (Am. Judicature Soc'y 2003).

(15.) Franklin Delano Roosevelt, Radio Broadcast (Mar. 9, 1932), cited in DAVID M. O'BRIEN, 2 CONSTITUTIONAL LAW AND POLITICS 65 (5th ed. 2003) (citing Franklin Delano Roosevelt, Fireside Chat on Reorganizing the Federal Judiciary (Mar. 9, 1937)).

(16.) See Tom Curry, A Flap over Foreign Matter at the Supreme Court: House Members Protest Use of Non-U.S. Rulings in Big Cases, Mar. 11, 2004, available at www.msnbc.msn.com/id/ 4506232 (last visited May 26, 2004).

(17.) See Fed. Judicial Ctr., Impeachments of Judges, at www.fjc.gov/history/home.nsf (select 'Judges of the United States Courts") (last visited May 26, 2004).

(18.) Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21,117 Stat. 650 (2003) (to be codified at 28 U.S.C. [section] 944); see also Christian Haran Moen, PROTECT Act Amendment 'Intimidates' Judges, Critics. Say, TRIAL, May 2004, at 12.

(19.) William H. Rehnquist, 2003 Year-End Report on the Federal Judiciary (Jan. 1, 2004), available at www.supremecourtus.gov (click on "Public Information") (last visited May 26, 2004).

(20.) Frank Santiago, Iowa Lawmaker Urges Removal of Four Justices, DES MOINES REG., Feb. 20, 2004, at 1A.

(21.) John J. Sanko, GOP Targets Judges, ROCKY MTN. NEWS, Jan. 3, 2004, at 2A.

(22.) RONALD WEICH, UPSETTING CHECKS AND BALANCES: CONGRESSIONAL HOSTILITY TOWARDS THE COURTS IN TIMES OF CRISIS 16 (ACLU 2001).

(23.) Pub. L. No. 107-56, 115 Stat. 272 (2001).

(24.) Pub. L. No. 108 21, 117 Stat. 650 (2003).

(25.) See Rehnquist, supra note 19.

(26.) Anthony M. Kennedy, Speech at the ABA Annual Meeting (Aug. 9, 2003), available at www.supremecourtus.gov/publicinfo/speeches/sp_08-09-03.html (last visited May 26, 2004).

(27.) Press Release, Admin. Office of the U.S. Courts, Judicial Conference Seeks Restoration of Judges' Sentencing Authority (Sept. 23, 2003), available at www.uscourts.gov/Press_Releases/jc908.pdf (last visited May 26, 2004).

(28.) S. 274, 108th Cong., 1st Sess. (2003).

(29.) Nat'l Ctr. for State Courts, Issue Brief, Analysis of Legislation to Expand Federal Jurisdiction over Class Actions (citing letter from Conf. of Chief Justices to U.S. Rep. Henry Hyde (R-Tex.) (July 19, 1999)), available at www.ncsconline.org/D_Gov/IssueBriefs/ClassActions.html (last visited May 26, 2004).

(30.) H.R. 3799 & S. 2082, 108th Cong., 2d Sess. (2004).

(31.) Stephan Dinan, DeLay Threatens to Curb Courts' Jurisdiction, WASH. TIMES, Mar. 6, 2003, at A1.

(32.) H.R. 3920, 108th Cong., 2d Sess. (2004).

(33.) State ex rel. Ohio Acad. of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999).

(34.) H.R. 1741 & S. 2378, 108th Cong., 2d Sess. (2004); see James L. Rosica, Inmate DNA Testing at Issue: Measure Would Deny Requests, TALLAHASSEE DEMOCRAT, Mar. 8, 2004, at B1.

BERT BRANDENBURG is the acting executive director of the Justice at Stake Campaign based in Washington, D.C. (www.justiceatstake.org).