Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

The answer to the question posed in the title, in the state of Wisconsin, is $8 Million dollars.  For those of us who think Judges are not and should not be politicians, the situation in Wisconsin is especially disturbing.  However, Wisconsin is not alone in this dilemma.  Thirty nine states elect their judges and the money flowing into those campaigns is increasing the concerns of special interests “purchasing” justice. Professor Turley has also commented in the past about the alarming amounts of money flowing into judicial elections.

In a recent United States Supreme Court decision, Chief Justice Roberts weighed in on money and politics in judicial elections.  “Last week, the United States Supreme Court upheld a Florida judicial rule that prohibits candidates for election to state judgeships from personally soliciting money for their campaigns. ‘ “Judges are not politicians,” Chief Justice John G. Roberts, Jr., wrote in the majority opinion in the 5-4 decision, “even when they come to the bench by way of the ballot.” He went on, “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.” ‘ New Yorker

Since Chief Justice Roberts opined that judges should not be politicians and therefore should not be personally soliciting money for their campaigns, the Williams-Yulee v. Florida Bar decision linked above, may alter State court justices from spending their way into a seat on their respective courts. Hopefully, it will at least prevent judges or judicial candidates from personally asking for donations.  How much the special interest groups who funnel money to judicial candidates will be impacted by this ruling will be answered over time.

As mentioned above, Wisconsin is not alone in the disturbing trend of big money flowing into state Judicial elections.  In my home state of Illinois, a Supreme court seat from Southern Illinois has been the focal point of special interest groups for both candidates pouring huge sums of money to make sure their candidate is elected.  In a 2004 election for an open Supreme Court seat, candidates Lloyd Karmeier and Gordon Maag and their special interest groups, spent over $9 million dollars in a hotly contested election.

In North Carolina, over $5 Million was spent on Supreme Court elections in 2014.  However, Michigan may have taken the prize for the most expensive judicial race elections in 2012.

“Michigan had the most expensive Supreme Court race in the country in 2012, with outside groups spending $13.85 million on issue ads that year. Five candidates are competing for two seats on the state Supreme Court this year, all nominated by political parties. And after leading the country in TV ad spending in 2012, Michigan is leading the pack again this year with over $4.3 million in total TV ad spending.” Christian Science Monitor

With all of this money flowing into Judicial elections, is it any wonder that even the conservative majority on the United States Supreme Court drew a line in the sand when it comes to the dangerous impact money can have in judicial elections and in the administration of justice in those states? When lobbying groups on both sides of the political spectrum spend millions on a judicial candidate, is it any surprise when decisions favoring one or more of the special interest groups become very controversial?

This out of control spending on judicial elections throughout the country should concern litigants and citizens alike.  When a judge or a candidate for a judicial position has to rely on outside lobbying groups and individual wealthy donors, how is that judge going to rule on cases that impact those donors or donor organizations? Will the judge or justice recuse themselves or as seen in the case of the Wisconsin Supreme Court, will the Justices snub their noses at the normal judicial standard of recusal?

The danger of money interests buying the Judiciary is especially apparent in the case of Wisconsin with the Wisconsin Supreme Court hearing a case on the Scott Walker John Doe investigations.

“The justices have yet to respond to a motion submitted under seal by the special prosecutor arguing that one or more of them must recuse themselves because of conflicts of interest in the case—and, perhaps, that the case should be decided by the state’s intermediate appeals court. It is understood that he named the four conservative justices. Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce are parties in the case, as the conservative political organizations that joined Walker in asking the court to review the investigation. Since 2007, they have spent almost eight million dollars to elect the conservative majority of the Wisconsin Supreme Court. They have been central players in turning Wisconsin into solid evidence of how judicial elections corrode public confidence in state courts.

Under the customary recusal standard, the justices would grant the special prosecutor’s motion: their impartiality can indisputably be questioned. But, with the recusal rule the justices adopted, which allows them to hear cases involving campaign donors, and each to make his own recusal decisions, it is not clear what they will do. Some distinguished legal ethicists insist that the justices must recuse themselves even under their rule. In a friend-of-the-court brief, the scholars said, “Recusal is mandatory where there is a serious risk of actual bias based on objective considerations.” Wisconsin Manufacturers & Commerce, as it happens, was one of the business groups that drafted the court’s recusal rule.” The New Yorker

So not only are the special interests funneling huge sums of money into judicial contests across the country at an alarming pace, at least in the case of Wisconsin, one of those special interest donors is also drafting the courts recusal order language!  Does that concern you?

I think Chief Justice Roberts would at least be concerned with the spending as noted in the Williams-Yulle v. Florida Bar case decision.  I would also hope that he would be concerned with non-jurists and non-legislators writing a recusal standard for a state Supreme Court. Isn’t it time to find a better way to select judges?

What do you think?

“The views expressed in this posting are the author’s alone and not those of the blog, the host, or other bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.”