The prospect of big, greedy corporations and bigoted, right-wing religionists seizing control of the state courts is plenty scary, like finding Karl Rove and Donald Wildmon on your doorstep. (Does anybody sell Rove and Wildmon masks for Halloween? People would hand over their daughters to avoid tricks from those two.) Add the U.S. Chamber of Commerce to the cause, and you have a true Axis of Evil.
It could happen in Arkansas, the way it's happened elsewhere. Rove, the Republican Party strategist and lead handler of George Bush, helped business interests unseat a Democratic chief justice of the Alabama Supreme Court who was believed soft on plaintiffs. He's done similar work in his home state of Texas.
Over the last decade, the Chamber of Commerce has poured millions of dollars into state Supreme Court races around the country, seeking — usually successfully — to get rid of justices who've displeased corporations by ruling against them in lawsuits.
Right-wing religionists got everybody's attention last year, when they removed three Iowa Supreme Court justices who'd voted to legalize same-sex marriage. The vote by the seven court justices was unanimous, but only three of them were on the ballot in 2010. Presumably, the fundamentalist faction will go after others in 2012, like sharks coming back for another bite.
In Arkansas, a "tort reform" law, making it more difficult for people to win lawsuits against corporations, was approved by the legislature a few years back. Since then, some of the law has been struck down by the Arkansas Supreme Court as unconstitutional. Similar rulings in other states have resulted in business interests backing "tort reform" candidates against sitting justices in bitter and expensive elections.
The Arkansas Supreme Court last year invalidated an initiated act that prohibited unmarried, cohabiting couples from adopting or fostering children. Act 1 was aimed primarily at same-sex couples, who cannot legally marry in Arkansas. It was backed by the Arkansas Family Council, a fundamentalist group, and approved by voters in 2008. After the Supreme Court knocked the law down, Family Council President Jerry Cox said the decision was the worst the Court had ever made. The decision by the seven-member court was unanimous. None will be removed for that vote in 2012, though. Only one Supreme Court seat will be on the ballot next year, and the incumbent, Associate Justice Jim Gunter, is not seeking re-election.
Associate Justice Robert Brown wrote the Act 1 decision, saying the act violated fundamental privacy rights implicit in the Arkansas Constitution. Angry voters won't get another shot at him. His term doesn't expire until 2014, but he's announced he'll retire at the end of 2012 (after the elections). He couldn't run again even if he wanted to, because of age limits on judicial candidates.
Nonetheless, Brown is concerned about what he's called "toxic judicial elections," of the sort that have occurred elsewhere and could occur here. He's the chairman of a state task force looking for ways to prevent their occurrence. The Task Force is a creation of the Arkansas Bar Association and the Judicial Council, which is an organization of the state's judges.
In a law-review article, Brown has noted that "judicial campaigns for the supreme court in Alabama in 2008 cost a total of $5.3 million. They cost $9.3 million in Illinois in 2004. A 2008 election for the high court in Wisconsin cost approximately $6 million, with $4.8 million contributed by special interest groups and $1.2 million raised on behalf of the candidates themselves. In Michigan, the price tag for chief justice in 2008 exceeded $7.5 million." Last year in Arkansas, the two Supreme Court races on the ballot cost a total of $1.8 million, big money by Arkansas standards, but not reflective of the huge contributions from special-interest groups that have been made in other states.
In that 2008 Michigan race, a Republican chief justice, Cliff Taylor, was defeated by a Democratic challenger, Diane Hathaway, in an election that has been described as "an orgy of negativity." Brown says:
"A number of attack ads were run on television by both candidates, the majority of which were paid for by special interest groups, including the Michigan Democratic and Republican Parties and the Michigan Chamber of Commerce, at a cost in excess of $3.8 million." A Democratic ad accused Taylor of nodding off during a case involving the deaths of six children. A Republican ad, citing a decision by Hathaway to give probation to an Arab-American defendant, suggested that she was sympathetic to terrorists.
In Arkansas, judicial races are nonpartisan; presumably, the political parties will not make large contributions. But there's nothing to keep the big-business groups out. The right-wing religious groups don't generally have a huge amount of money, but they have voters, and they can turn them out.
Forbes magazine reported that the U.S. Chamber of Commerce raised $8 million to contest judicial races in 2000, $20 million in 2001, and $40 million in 2002. The Chamber won 21 of the 24 judicial races it attempted to influence from 2001 to 2003. In 2004, the Chamber won 12 of the 13 state supreme court races in which it was involved. Chamber President Tom Donohue said in a 2002 speech that "On the political front, we're going to get involved in key state supreme court and attorney general races as part of our effort to elect pro-legal reform [pro-business] judicial candidates."
The National Association of Manufacturers, a corporate cousin of the Chamber, also invests in judicial races, through a subsidiary called the American Justice Partnership that strives to withhold justice from plaintiffs.
Viveca Novak wrote in The American Prospect that "The true extent of spending by the Chamber and the AJP is impossible to know. They and many of the conduit groups through which they funnel money are organized under sections of the tax code that don't require disclosure of donors or outlays. Also, in some cases, groups can mask their donors when they run only 'issue ads' that don't explicitly call for someone's election or defeat, even if their intent is clear."
A Wisconsin race involving Louis Butler, the state's first black Supreme Court justice, produced what Brown says are perhaps the most offensive ads in recent memory. Butler's challenger, Michael Gableman, ran a Willie Horton-type ad that showed a black offender and had this voiceover: "Louis Butler worked to put criminals back on the street. Like Ruben Mitchell, who raped an 11-year-old girl with a learning disability. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?" The Butler camp responded with an ad accusing Gableman of being soft on sex offenders. It didn't save Butler from becoming the first incumbent judge to lose a race in Wisconsin in 40 years.
"Demagoguery and outrageously high campaign contributions are emerging as the twin ingredients for success in supreme court elections," Brown says.
In Arkansas, judges are elected. (A system of which Brown approves, incidentally.) In Iowa, they're appointed, a procedure that some believe produces better judges. A 15-member panel — seven members appointed by the governor, seven by the state bar association, one a sitting state supreme Court justice — interviews potential judges. The panel is forbidden from asking about political affiliation. The panel recommends three finalists for each vacancy. The governor selects from those three. Periodically, voters decide whether a particular judge should be retained or dismissed. Incumbent supreme court justices usually win these retention votes easily. Not in 2010.
In 2009, the seven-member Iowa Supreme Court ruled unanimously that Iowa's ban on same-sex marriage violated the equal-protection clause of the state constitution. Iowa became the third state to legalize same-sex marriage, behind Massachusetts and Connecticut. Five of the justices had been appointed by Democrats, two by Republicans.
Social conservatives were outraged by the decision, and three of the offending judges were up for retention in 2010 — Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit. Some Iowa Republican politicians were active in a movement to remove the three, but the anti-retention campaign got its money from a religious-right group, the American Family Association (AFA), headquartered in Tupelo, Miss. Originally called the National Federation for Decency, the organization was founded in 1977 by Rev. Donald Wildmon, and is often in the forefront of Religious Right causes. Its efforts bore fruit in Iowa. All three of the offending justices lost their retention votes. The decision allowing same-sex marriage still stands.
The Arkansas Task Force on Judicial Elections has been meeting for months and is expected to have some recommendations by the end of the year. Some of the proposals it is considering to keep judicial elections clean would require legislative action, possibly even constitutional revision. Some could be achieved more informally.
The reform that might be the most effective might also be the hardest to achieve. Public financing of judicial campaigns would effectively prevent big campaign contributions from special interests, but as a practical matter, the chances of achieving public financing in Arkansas are slight. Many Arkansans would be hostile to the idea of spending the people's money to elect lawyers, figuring the lawyers get enough of their money already. But North Carolina has public financing, and other states are considering it.
Another proposal would require judges to recuse in cases involving their big campaign contributors. Some judges do this now, voluntarily. Some don't.
A "rapid response team" of lawyers and laymen would respond to misleading ads by judicial candidates, possibly asking for a retraction from the candidate, and issuing its own statement if he or she didn't retract.
The use of an official "voter's guide" providing information about judicial candidates and sent at no cost to all voters would perhaps lessen the use and influence of deceptive advertising. Most voters are unfamiliar with the judicial candidates, which makes them easier to mislead.
The movement to keep special-interest money from dominating judicial elections became even more urgent with the U.S. Supreme Court's decision last year in the Citizens United case. Reformers like Brown may want to lessen the influence of corporate contributors, but a majority of the Supreme Court does not. In a 5 to 4 decision, the Court removed the legal limits on corporate contributions in political races. Reformers feel that decision looming over them.
"What we're doing is prophylactic," Brown said. "We're getting ready for what we think is coming."