The noble promise engraved above the entrance to the Supreme Court is "Equal Justice Under Law." It is not: "Justice Goes to the Highest Bidder." Yet that is what many Americans think is happening in their courts. With businesses and interest groups pouring more and more money into state judicial elections — more than $34 million for state supreme court races alone in 2006 — the public can't be faulted for concluding that donors are getting what they pay for, namely favorable treatment from judges who are supposed to be impartial. Advocates for reform are hoping that a case that comes before the U.S. Supreme Court next week will address this growing concern.
Judicial elections used to be mostly genteel affairs, with lawyers winning election based on local reputation and maybe an ad or two in the hometown newspaper. Now, these races have been infected with high-priced campaigning and misleading television commercials and questionnaires. The trend feeds the cynical belief that courts — just like legislatures, governors and mayors — can be lobbied and manipulated through well-placed donations. This has begun to take a toll on public faith in the court system. In a poll released this week by Justice at Stake, a fair-courts advocacy group, more than two-thirds of those surveyed doubted that a judge could be impartial in a case in which one side had donated $50,000 to his or her campaign, and 85% said the judge should step aside, or recuse. In a USA TODAY survey this month, 89% said the influence of campaign money on judges is a problem. Some or all judges are elected in 39 states.
'Like a hooker'
Even judges themselves — not usually prone to public introspection — feel dirtied by campaign money. Ohio Supreme Court Justice Paul Pfeifer said in 2006, "I never felt so much like a hooker down by the bus station. ... Everyone interested in contributing has very specific interests. They mean to be buying a vote." After Illinois Supreme Court Justice Lloyd Karmeier and his opponent raised about $9 million for their 2004 contest — one of the costliest judicial elections in history — Karmeier said, "Basically that's obscene for a judicial race. ... How can people have faith in the system?" (Karmeier didn't exactly restore faith when, after winning, he refused to recuse in a high-stakes case involving one of his major benefactors.)
Restoring confidence in the courts is at the center of a crucial case that will be argued before the U.S. Supreme Court on Tuesday. Judicial reformers are asking the high court to declare that at some point, campaign donations can be so high that they result in a "probability of bias," requiring that judges recuse in cases involving the donors. That might not sound like much to ask, but it's a significant start. Most states already require judges to recuse when the judge's impartiality "might reasonably be questioned," wording developed by the American Bar Association. But the decision to recuse is usually left up to the judges, and some judges argue that because the donations go to their campaigns, not directly into their pockets, there's no problem. Litigants don't often ask a judge to step aside, fearing they'll anger the judge and invite retaliation if he or she says no. The case also reflects a shift in tactics for those alarmed by increasingly costly and noisy judicial elections. Reformers who might once have pushed for eliminating judicial elections now realize that elections are here to stay, so they are pressing for ways to make the system more respectable.
The case before the nation's highest court is an outsized example of the damaging influence of campaign money. The chief executive of A.T. Massey Coal Co. sank $3 million of his own money to help elect Brent Benjamin to a seat on West Virginia's Supreme Court. Not coincidentally, the company was appealing a $50 million verdict in a business dispute, and the appeal was heading to the very same court. Benjamin won the election, and sure enough, on the court he provided the crucial vote that gave Massey its victory on appeal. Benjamin refused requests to recuse in the case, and no one could second-guess him. Massey's allies assert that the U.S. Supreme Court should keep its nose out of judicial elections and allow states to police their own judicial ethics. But many believe that the time is right for the Supreme Court to act — at least to help define when campaign donations should trigger recusal. Even business organizations — the kind of folks who might benefit from donating to judicial candidates — have realized that things have gotten out of hand. "There is a need to signal to businesses and the general public that judicial decisions cannot be bought and sold," according to a brief filed by businesses that include Intel and Wal-Mart.
Once the high court sets a standard, other reforms can follow. The Brennan Center for Justice suggests allowing litigants a no-fault shot at asking for a new judge as a case begins, in the same way that they can challenge potential jurors. Allowing other judges or an independent body to review recusal decisions is another worthwhile step. Or states could follow the lead of North Carolina and New Mexico and move toward public financing of judicial elections. Almost anything to weaken the potency of campaign money in electing judges is worth a look. As retired justice Sandra Day O'Connor put it at a Georgetown University conference last year, "Justice is a special commodity. The more you pay for it, maybe the less it's worth."
Tony Mauro, Supreme Court correspondent for Legal Times and Incisive Media, is a member of USA TODAY's board of contributors.