A new study led by the Brennan Center for Justice has documented how the enormous rise in judicial campaign spending over the last decade threatens the impartiality of our nation’s courts and undermines public confidence in the justice system.
The authors of The New Politics of Judicial Elections, 2000-2009: Decade of Change [1] found that spending on statewide judicial campaigns totaled $206.9 million over the last decade, more than double the $83.3 million spent in the 1990s. Most of the money came from special interest groups likely to appear before the judges they helped elect. The major donors are largely corporations, industry groups, political parties, and law firms. The authors noted that these groups tend to focus spending on television attack ads, which are usually harsher than the candidates’ own ads and often misleading.
The study singled out Alabama as having the highest spending in the nation - $43.6 million - on state supreme court campaigns for the decade examined. Alabama Supreme Court justices far outspent even those in the second-highest state, Ohio, where high court elections cost $29.8 million. The authors determined that election money created a far more business-friendly Alabama Supreme Court by 2009 because, “a select club of state and national special interests emerged to bankroll Supreme Court elections and fundamentally reshape the court.”
The record amounts of cash poured into Alabama’s judicial elections provide stark contrast to the state’s spending on legal services for people who cannot contribute to these elections. One commentator in the study noted that while Alabama is first in the country in money spent on judicial races, the state ranks last in the funding of legal access for the poor.
Alabama’s cash-fueled judicial elections are particularly problematic in the context of the death penalty because of judicial override. Fueled by "tough on crime" rhetoric in partisan judicial elections, judicial override in Alabama is on the rise. More than a quarter of Alabama’s current death row prisoners were condemned to death by an elected judge through override of a jury life verdict. In 2008, an election year, 30% of the death sentences were imposed by judicial override of jury life verdicts.
Polls consistently show that the American public is concerned by judicial campaign spending trends and believes justice is often for sale, according to the study. About three in four Americans believe campaign spending influences courtroom decisions. Nearly half of state court judges share this view. “This crisis of confidence in the impartiality of this judiciary is real and growing,” retired United States Supreme Court Justice Sandra Day O’Connor wrote in the report. “Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” Justice O’Connor and others are working for reforms to take political pressure out of the judicial selection process, including public financing of campaigns, campaign disclosure laws, and recusal reforms.