attorney at the Brennan Center for Justice at New York University School of Law.
The unprecedented ouster of three Supreme Court justices in Iowa who ruled in favor of same-sex marriage is raising fresh concerns over the politicization of judicial elections and the influence of special interest groups on the courts. Opponents of same-sex marriage targeted the judges in an intense campaign to boot them off the bench. We speak to attorney Adam Skaggs of the Brennan Center for Justice at New York University School of Law and Carolyn Jenison of One Iowa, the state’s largest LGBT advocacy organization. [includes rush transcript]
JUAN GONZALEZ: The unprecedented ouster of three Supreme Court justices in Iowa who ruled in favor of same-sex marriage is raising fresh concerns over the politicization of judicial elections and the influence of special interest groups on the courts.
The three judges were part of the unanimous decision of Iowa’s seven-member court last year to overturn a law defining marriage as between a man and a woman. Following the ruling, opponents of same-sex marriage targeted the judges in an intense campaign to boot them off the bench. Several right-wing groups from both inside and outside the state, including the American Family Association and the National Organization for Marriage, poured up to $700,000 into a campaign for the judges’ removal that included funding TV ads like this one.
NATIONAL ORGANIZATION FOR MARRIAGE AD: Some in the ruling class say it’s wrong for voters to hold Supreme Court judges accountable for their decisions.
FMR. JUSTICE MARK McCORMICK: There is no such thing as an activist judge.
NATIONAL ORGANIZATION FOR MARRIAGE AD: When activist judges on Iowa’s Supreme Court imposed gay marriage, they were the only judges with 1,200 miles to reach such a radical conclusion. If they can redefine marriage, none of the freedoms we hold dear are safe from judicial activism. To hold activist judges accountable, flip your ballot over and vote no on retention of Supreme Court justices.
JUAN GONZALEZ: Under Iowa’s electoral system, judges run unopposed but need to gain more "yes" votes than "no" votes to win another eight-year term. Each of the three judges received only about 46 percent support, making it the first time that Iowa Supreme Court justices had been rejected by voters.
AMY GOODMAN: A report by the Brennan Center for Justice this year found a "transformation" in state judicial elections over the past decade throughout the country. The report says, quote, "For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale," the report said.
Adam Skaggs is an attorney at the Brennan Center for Justice at New York University School of Law. He wrote the report, "The New Politics of Judicial Elections." He’s joining us here in New York. And joining us via Democracy Now! video stream from Des Moines, Iowa is Carolyn Jenison, the executive director of One Iowa, the state’s largest LGBT advocacy group, which joined a coalition advocating for the retention of the judges.
We welcome you both to Democracy Now! Let’s start first in Iowa. Carolyn, talk about what happened. I mean, this was not a case of judges who were elected being beaten by opponents.
CAROLYN JENISON: You know, Iowa has one of the best judicial systems in the country, and it’s always been fair and impartial. And honestly, 61 percent of voters usually don’t turn their ballot over. And so, this was an unprecedented event. We’ve never seen it before. And the loss of the Supreme Court justices is a direct result of out-of-state extreme special interest groups who poured nearly a million dollars into our state.
AMY GOODMAN: Who organized it?
CAROLYN JENISON: A failed gubernatorial candidate, Bob Vander Plaats. And when he was running for governor, his main focus, his single platform, was eliminating the freedom to marry for gay and lesbians in Iowa. And so, when he lost, he turned his sights on taking out the justices.
JUAN GONZALEZ: Now, when you say Iowa has one of the best systems, exactly how does it work? They’re initially appointed and then have to stand for election? Could you explain that?
CAROLYN JENISON: They stand for retention after their first year of appointment. And they are ranked by their colleagues. And it is posted on the Iowa State Bar Association, how they are ranked based on how they treat the plaintiffs, if they rule timely, if they are in court on time, if they’re polite, and things like that. So, they are ranked by their colleagues that stand in their courts, and then that information is posted. And normally Iowans, if they do turn over the ballot, most of them just vote yes.
AMY GOODMAN: So, who is going to replace these judges now?
CAROLYN JENISON: There is a process. There’s a commission that posts the openings, and then, within sixty days, they give those — they look them over, they have sixty days to review, and then they present three — they present the candidates to the standing governor for appointment.
AMY GOODMAN: And how does this affect same-sex marriage law in Iowa?
CAROLYN JENISON: The election doesn’t directly affect the immediate — does not have immediate bearing on the freedom to marry in Iowa. Removing those justices does not remove the ruling. The ruling still stands. Our fear is that these people are now emboldened to take their fight to the legislature in January. And they have regained control of the House, and the Senate is still up for grabs, but our amendment process takes a long time. Iowans have great respect for their constitution, and we are not a ballot measure state. It takes two general assemblies to make an amendment to our constitution. And we have never amended our constitution to take away rights of Iowa citizens.
JUAN GONZALEZ: Well, I’d like to bring in Adam Skaggs from the Brennan Center for Justice. And give us a more national perspective on what is happening with the judges around the country, especially when it comes to judicial elections.
ADAM SKAGGS: Sure. Well, what we documented in the report is that over the past decade there’s really been an explosion in spending in Supreme Court elections. And a huge percentage of that money is not raised by candidates and spent by their own campaigns, but is poured into these races by special interest groups, political parties and others that are hoping to influence the courts. The report documented those trends in contested elections, traditional elections where two candidates face off for a seat on the bench.
What we saw this year for the first time is the same kind of spending, the same kind of negative campaigning, and the same kind of harsh political attacks by special interest groups coming into these one-candidate retention elections, like the kind we were talking about in Iowa. There was another extremely expensive retention election in Illinois, where a sitting incumbent justice came under blistering attacks from business groups over a ruling that he had made in a medical malpractice case, in which he struck down caps on certain damages in medical practice awards.
Now, the justices in Iowa, faced with this out-of-state campaign to oust them, decided to sort of take the high road. They did not campaign. They didn’t raise the same kind of money that other political campaigns do. And they tried to educate the public to the values of an independent judiciary. Obviously, that effort was unsuccessful. The Illinois justice, Justice Thomas Kilbride, took a different approach. When he realized he was coming under these attacks, he raised a huge war chest of money, largely from the state Democratic Party and from trial lawyers that support the Democratic Party. And he was successful.
So I think judges around the country faced with these kinds of attacks are going to look at Iowa, what happened to the judges that didn’t climb down into the mud and fight back, and then look in Illinois to the judge that raised over a million dollars, in fact exceeding the total amount spent in retention elections over the entire previous decade, and are going to say, "If we want to keep our jobs, we’re going to have to do the same kind of campaigning."
JUAN GONZALEZ: So we’re going to have a whole new wave of expensive campaigns now, on top of all the others, in terms of judicial elections.
ADAM SKAGGS: Well, I think that’s likely. And the other thing that I think is troubling about what happened in Iowa is, with the involvement of these out-of-state groups coming in and dumping this kind of money into the races —
AMY GOODMAN: Seven hundred thousand dollars?
ADAM SKAGGS: That’s right. Altogether about $1.2 million was spent in the Iowa races, two-thirds of that by the groups opposing the justices, and the vast majority of that money, $700,000, was from out of state. But I think what we’re going to see is judges were sent a clear signal by these out-of-state activist groups. They were sent a signal that if you rule in these hot-button, highly controversial, notorious cases, you better keep an eye looking over your shoulder, you better watch your back because we will come after you if we don’t think you did the politically popular thing, if we don’t like your ruling.
AMY GOODMAN: Adam, what happened in Michigan?
ADAM SKAGGS: In Michigan what happened was we saw an incredibly expensive, very ugly campaign. There was a Democrat and a Republican justice up for election to that Supreme Court. The Republican Party outspent all other groups combined. The Democratic Party also spent a great deal of money. An out-of-state group, the Law Enforcement Alliance of America, came in and dumped a huge — hundreds of thousands of dollars into the race in support of the Republican candidates, and they both won. The Republicans swept, as they did in Ohio and Alabama and some other expensive states.
The implication of that in the Michigan Supreme Court is that a court that was previously split four to three with the Democrats in the majority has now flipped to be four-three in the Republican camp. And that will likely have some impact on the kinds of rulings. There will probably be reversals of decisions that were made just in the past few years. So, the highly partisan nature of the hotly contested politicized campaigns that we’re seeing in state Supreme Courts around the country are having significant impacts on what those courts look like.
JUAN GONZALEZ: Well, I’d like to play an ad broadcast in Michigan that targets Bob Young, an incumbent justice on the Michigan high court. The ad from the Michigan State Democratic Party accuses Young, who is African American, of being a racist and a sexist.
MICHIGAN DEMOCRATIC STATE CENTRAL COMMITTEE AD: Who says Justice Bob Young doesn’t deserve another eight-year term on the Michigan Supreme Court? Fellow Republican Justice Elizabeth Weaver, that’s who. She said Bob Young used the word "slut" and the N-word in deliberations with other justices. What was Bob Young’s response? He blamed Justice Weaver for reporting his racial and sexist slurs. Sorry, Bob. Now we all know. Call Bob Young and tell him we don’t need a racist or a sexist on the Michigan Supreme Court.
JUAN GONZALEZ: And here’s another ad from Michigan that targets Judge Denise Langford Morris, who is challenging incumbent Justice Bob Young of the Michigan Supreme Court.
LAW ENFORCEMENT ALLIANCE OF AMERICA AD: Judge Denise Langford Morris has been soft on crime for rappers, lawyers and child pornographers. For a rapper facing a gun charge while on probation, Langford Morris let him walk free. For a city attorney who crashed while driving a hundred with cocaine in his car, Langford Morris gave him probation. And for a special ed teacher convicted of child pornography crimes, just one day in jail. Tell Judge Denise Langford Morris, get tough.
JUAN GONZALEZ: That ad was sponsored by a Virginia-based group, the Law Enforcement Association of America, which has been linked to the National Rifle Association and the US Chamber of Commerce. What about these ads? Most people, when they go to vote, don’t know anything about the judges that are on the ballot. And of course, television and newspapers rarely cover the records of these judges. So these ads obviously will have a major impact on how — the people at least remember the name of the judge and will associate one thing or another, negative or positive, in terms of how these ads come out.
ADAM SKAGGS: Well, that’s exactly right. And you’re absolutely right that candidates are much less well known to the voters in judicial races than they are in a race for Senate or governor or certainly the presidency.
JUAN GONZALEZ: [inaudible] I think unknown.
ADAM SKAGGS: Well, that’s probably accurate. And what happens is, these campaigns, these nasty television campaigns, come in at the very last couple of days and weeks of the campaigns and seek to define these judges. This year we saw about $12 million, and that’s a conservative estimate, about $12 million spent on TV ads in these judicial races. About $5 million of that, 40 percent of the total, spent in just the last week. So this last-minute barage of negative attack ads seeks to define these candidates.
And they frequently target them — obviously, the attack on Justice Young there, the Democrats’ ad attacks him personally. But most of the time, the records of the candidates on crime issues, whether they’re tough enough on crime, whether they’re soft on crime, are the defining themes of the campaign ads. And often the groups running these ads don’t have anything to do with the criminal justice system. So the US Chamber of Commerce, groups like that, come in, suggest the candidates are not tough enough on crime, when their agenda has nothing to do with criminal justice. It’s all about tort reform, business issues and that sort of thing.
AMY GOODMAN: Ohio and Alabama?
ADAM SKAGGS: Ohio and Alabama also saw clean sweeps by the Republican slate of candidates. In Ohio, the sitting Democratic chief justice was ousted by a Republican justice on the court who will now be the chief justice. In Alabama, where the Republicans have controlled the Supreme Court for several years now, it was also a clean sweep there.
AMY GOODMAN: Is there a reason why more money is pouring in now?
ADAM SKAGGS: Well, I think there are a number of reasons, but I think the key reason is that special interest groups and political parties have realized — and this is not a lesson they learned this year, but they have realized in the past — that the state Supreme Courts set policy, in effect, for the entire state. That’s a very powerful body. And if they can control a majority, if they can get four votes out of seven in these state Supreme Courts, they have the potential to make incredibly important sweeping rulings that will affect the entire state. A union official in Ohio, going back now twenty years, said, "You know, it’s a lot easier to buy seven votes on the Supreme Court than it is 132 in the legislature." And I think that’s what they’re realizing. If we can flip one seat, if it’s three-three and we can flip that fourth seat and get a majority on that court, that’s going to be an important victory for us. And it’s a lot easier than trying to flip the entire legislature.
JUAN GONZALEZ: But what’s the solution? Obviously, some reformers favor merit selection of judges across the board. The problem then is, of course, that in merit selection you usually have a less diverse judiciary, that in fact it’s been through elections that more African Americans and Hispanics and peoples of other minority groups have been able to get on the bench at all. So, what’s the solution from the perspective of the Brennan Center?
ADAM SKAGGS: Well, merit solution is certainly one option that states can go to, replacing their competitive, very expensive elections with a merit selection system, like Iowa has. It’s often difficult, though, to convince voters to amend the constitution, which is usually what’s necessary to flip from elections to merit. This year voters in Nevada were asked whether they wanted to switch to a merit selection system, and they said no.
But there are many opportunities to reform the system short of that. To address the first problem of these money-saturated, these money-drenched elections, we recommend that states look to public financing of judicial races. So this gets judges out of the business of dialing for dollars, provides campaigns funding to run competitive races. And it’s been highly successful, public financing, in North Carolina, where it was first adopted for appellate races. Wisconsin just adopted a system of public financing, which will be in effect next year for the first time, and a couple of other states. That’s an important first step.
It’s also, I think, vitally important that states strengthen their disclosure rules, so that the parties that are paying, often anonymously for these harsh campaign attack ads, are known to the public. And if you show up in court and you’re standing before the judge and you know that the group or the company that you’re standing across from has given millions of dollars or thousands of dollars to the judge, you’ll know. So disclosure is the second key reform.
And then, good disqualification rules, I think, is the third crucial item. When judges preside in court and one of the parties who comes in has given significant campaign support to the campaign, that judge should step aside and let another wholly impartial judge hear the case. And unfortunately, in too many states across the country, the individual judge, the judge who’s subject to a request to disqualify him or herself, has the last word and is the only one that gets to weigh in on whether or not it’s fair to question whether they can be totally impartial.
AMY GOODMAN: Adam Skaggs, we want to thank you very much for being with us. Adam Skaggs is with the Brennan Center for Justice at New York University School of Law. We also want to thank Carolyn Jenison, joining us from Iowa, executive director of One Iowa.