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What is the Cost to Purchase a State Supreme Court?

Chief Justice Roberts

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?

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44 thoughts on “What is the Cost to Purchase a State Supreme Court?”

  1. How pathetic to call the Wisconsin electorate ignorant and spew your Walker hate here as if there were not election after election & a recall in which ‘Sconnie nation told the union sycophants to take their unhinged hatred and escape to Illinois…again. What is wrong with progressives when they can never accept “you lose” based on democracy? Why is always shenanigans or some silliness, when you just flat out lose on the debate of facts? Why do you ignore that the majority of money spent in ‘Sconnie elections has been by leftist unions from outside Wisconsin…and you still lost? You are losing the debate with your unhinged Walker hate and complete inability to just focus on facts. But hey, keep it up…the more demented your obsessive behavior the bigger the margin the conservatives win by…the left is repulsive in it’s character assassination vs issues.

  2. Makes me sick.
    What really makes me sick is when I am front of a stupid judge, who got elected because of money, like the one that overruled an objection to hearsay when the testimony that caused me to jump out of my seat started with, “I was on the phone with Sheila and she told me that Mary said….. Objection, overruled!

  3. In 1910, the Territory of Arizona held a constitutional convention, created a proposed Constitution for Arizona so it could be admitted to the Union, and presented it as a bill to Congress, who promptly passed it. The bill contained a provision for recalling judges, which then-President William Howard Taft disliked, calling it “pernicious and destructive,” and promptly vetoed it. The constitutional convention was reconvened, and they redrafted their Constitution without the provision to recall judges. President Taft then signed the law in 1912, making Arizona the 48th state. During the first general election following statehood, the citizens of Arizona reinstated the recall of judges into their Constitution, essentially thumbing their collective noses at the federal President. Arizonans have always been very independent, regardless of how the prominent politicians regard them and what demands are made upon them. Ironically, the provision to recall judges appears never to have been used. It seems like a very handy and powerful tool for the People to have to ensure no judge is blatantly owned by any particular entity.

  4. “Michigan had the most expensive Supreme Court race in the country in 2012, with outside groups spending $13.85 million” per author Rafferty (rafflaw). These “outside groups” included “organized crime” in Michigan. Many judges at all levels are on the take so as to fund their campaigns, thus judges at all levels are beholden to their donors. It is easy to hide donations in Michigan – many multi-layered, secret PACS. And, the $13.85 million does not include CASH donations.

    Oakland Press Organized Crime reporter Scott Burnstein repeatedly stated,
    “From my relationships with current and former federal law enforcement officials, there is a belief that guys involved in organized crime, especially in racketeering, have ties into the judicial system.”
    What more do you want to hear?

    Judicial corruption is often tied to political corruption in Michigan.

    U.S. Supreme Court Justice Sandra Day O’Connor and Michigan Supreme Court Justice Marilyn Kelly filed their “Michigan Supreme Court Judicial Selection Task Force Recommendations” report in April 2012,
    http://iaals.du.edu/library/publications/michigan-judicial-selection-task-force-report , but NOTHING was done to correct the problems. The report acknowledged “dark money” drives court decisions.

    Money, money, money drives Michigan’s Mafia Courthouse!

  6. Bruce

    The only smell in the White House is the residue from the three stooges. 2000 to 2008 of shame leaves an awful stench. Just cuz Obama hasn’t cleaned it all up, well……

  7. https://www.americanprogress.org/issues/civil-liberties/report/2014/05/07/89068/state-judicial-ethics-rules-fail-to-address-flood-of-campaign-cash-from-lawyers-and-litigants-2/

    “Wisconsin received a failing grade after its state supreme court adopted a recusal rule that literally instructs judges not to recuse themselves from cases involving campaign contributors. In 2010, the four-justice conservative majority on the Wisconsin Supreme Court voted to institute a recusal rule written by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce, a group that subsequently donated nearly $1 million to support conservative Justice David Prosser’s re-election in 2011. The rule says that recusal is not required “based solely on … a lawful campaign contribution.” The majority’s comments that accompany the rule say that requiring recusal for campaign cash “would create the impression that receipt of a contribution automatically impairs the judge’s integrity.” In other words, the four justices in the conservative majority are worried that mandatory recusal would lead the public to think that judges are biased.

    The conservative justices will soon face another ethical dilemma if the court intervenes in a criminal investigation of several groups that have spent big money in Wisconsin state elections. The groups are reportedly under investigation for violating a Wisconsin law that prohibits independent groups from “coordinating” with the campaigns of candidates whom they support. After an appeals court allowed the investigation to proceed, the groups under investigation appealed to the state supreme court. The Wisconsin Club for Growth and Citizens for a Strong America—two of the investigation’s targets—also spend enormous sums of money on judicial races. According to an analysis from the Brennan Center for Justice, they spent $1.8 million in 2011 on a single candidate—Justice Prosser. Wisconsin Manufacturers & Commerce, the state’s chamber of commerce and one of the groups that wrote the court’s recusal rule, spent more than $900,000 to help Justice Prosser’s 2011 campaign and donated nearly the same amount to the Wisconsin Club for Growth. Even though these groups spent millions of dollars to get some of the justices on the bench, the justices are under no obligation to recuse themselves in a criminal investigation that targets the same groups.”

  8. How much influence does the average voter have when electing politicians or judges, with Citizens United? Buying judges and politicians is not the American way, or is it? Doesn’t comport with a democratic way of governing.

    1. Inga – Considering that the Clintons have taken in 30 million in speaking fees in the last 18 months, you have to ask who has access to them, sure isn’t the little people.

  9. I don’t agree with the practice of judges appointed by politicians. It has the potential to comingle the tripartite system where the executive selects the candidates and the legislature then confirms or denies the appointment. it creates a system where individual citizens have almost no say in who is the ultimate trier of issues before our constitution.

    We could see a situation where both the executive and legislatures are so aligned politically that they appoint and confirm judges or justices who are part of a political machine. And in the federal system they have lifetime appointment for judges upward. This creates a system that is could be entirely favorable of a one party rule system that does not allow any dissenting cases to come forward.

    With a citizen elected judge or justice, the public can break the process if it chooses to do so. That way if the public’s will goes out of complete alignment with the current politicians in the executive and legislative branches suddenly it can restore a measure of judicial review in throwing out Tammany Hall style judges.

    With regard to finances, I only support a system where judges or justices are non-partisan, as they are in our state. I agree that there is too much money in politics. But one of the reasons for this is that it is unchecked by legislation properly. The other is that most of the politicians we suffer currently make no moral stand and accept bribes campaign contributions in exchange for favorable treatment. The third is the apathetic and uninformed voter.

    If voters collectively showed more interest and were more careful in the caliber of candidates they would elect the special interest groups could pour all the money they could find into campaigns and it would make little difference. Open minded and rational voters will see through their smoke and mirrors and be more rational and less swayed by rhetoric, lies, and false promises.

    As an aside, it is frustrating to witness the perceived essentiality of the political class in our country. The atmosphere over the past two decades at least in my observation has become so charged with vitriol and political intrigue that large numbers of citizens now believe that in order for life to be better, the political class is the answer. We are about 500 days from the next presidential election and it seems in the news we are weeks away from the primary election. Why is this happening?

    One reason I propose is that the political class integrated itself so tightly into daily life of the average person they have convinced many that in order to rescue them from the opposing party, and therefore save their situation from harm, they must be entreated with constant attention and political capital. They created this belief that in order to have progress and positive benefits in the country it is necessary to have a politician provide it. As a result of this people turn to the political class for answers.

    The reality is that this is mostly an illusion. While we need a judicial branch for issues involving local and individual arbitration, the legislative and executive branch members could go on a one year vacation on a remote island and believe it or not things would get along fine in the lives of ordinary people.

    We have the infrastructure and systems to carry on. We have existing laws, and government agencies that are mandated to a known level of performance and more importantly the citizens have themselves and their own devices. A little known secret: Things get along well when the legislature is out of session.

    So if we continue to allow mooks and money to buoy the political class and make uninformed decisions about who we elect into office, the situation is not going to change.

    1. Darren – Arizona uses a modified Missouri plan for the two major counties, all other counties elect their judges the old fashioned way. Qualified lawyers apply to a commission that hones down the list, interviews and then selects three candidates for the governor (they must be of two parties). The governor can select one or reject all. If the governor rejects all the process begins again. The appellate judges are part of the Missouri plan. They run for retention. If they lose, the Missouri plan kicks in to replace them.

  10. Bruce: there has always been crap in the White House. They have never had proper plumbing.

    But on another topic. Here is a description of The Missouri Plan for Judicial Appointments taken from Wikipedia:

    Under the Missouri Nonpartisan Court Plan, a nonpartisan judicial commission reviews applications, interviews candidates and selects a judicial panel. For the Supreme Court and Court of Appeals, the Appellate Judicial Commission makes the selection. It is composed of three lawyers elected by members of the Missouri Bar (the organization of all lawyers licensed in this state), three citizens selected by the governor, and the chief justice, who serves as chair. Each of the three geographic districts of the Court of Appeals must be represented by one lawyer and one citizen member on the Appellate Judicial Commission.
    Each of the circuit courts in Clay, Greene, Jackson, Platte, and St. Louis Counties, and the city of St. Louis has its own circuit judicial commission. These commissions are composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. All of the lawyers and citizens must live within the circuit for which they serve the judicial commission.

    In line with other reforms urged during the Progressive Era, legal scholars put forth ideas in the first decades of the 1900s to reduce or remove the role of politics in the selection of judges, particularly circuit judges with responsibilities over the day-to-day work of the courts. An example of this advocacy is the merit selection program urged by Albert M. Kales in his work Unpopular Government in the United States (1914).[2]
    Support for merit selection increased due to the perceived corruption of urban political bosses. Missouri voters adopted the system by initiative petition in November 1940 after several very contentious judicial elections, which were heavily influenced by the political machine of Tom Pendergast.[1] Most low-level judges in Missouri are elected, except in Kansas City, St. Louis and Springfield, where the Missouri Plan is mandated by the state constitution for all judicial vacancies.[1] After Missouri adopted this method for selecting judges, several other states adopted it, either in full or in part.[1] The plan was put forth by a committee chaired by Luther Ely Smith, “founder” of the Jefferson National Expansion Memorial. .[3]
    The Missouri Non-Partisan Court Plan has served as a model for thirty-four other states that use merit selection to fill some or all judicial vacancies.[4] 23 states use the method or a variant for the state supreme court.[5]
    California uses a heavily modified version in which the Governor can theoretically nominate any California attorney who has practiced for ten years. But then the nominee must undergo an evaluation by the Commission on Judicial Nominees Evaluation of the State Bar of California, which then forwards a nonbinding evaluation to the Governor. For superior court positions, the Governor can make an appointment after receiving a report from JNE. For appellate court positions, the Governor submits the nomination to the Commission on Judicial Appointments, consisting of the Chief Justice, the Attorney General, and the presiding justice of the affected Court of Appeal district (or the most senior presiding justice for Supreme Court nominations). The CJA holds a public meeting, and receives the report from the JNE Commission, then decides whether to confirm the nominee. Once confirmed, the judge can take office but then must go through retention elections (at different intervals for each level of the judiciary).

    Note: Missouri has retention elections as well.

  11. Issac, and even more apparent from 2008 to today with this piece of crap in the white house now

  12. The answer to the problem is The Missouri Plan. In that state a Commission composed of lawyers, citizens of various backgrounds and respected people interviews candidates for judicial openings. They chose a panel of three. The Governor choses one of the three. This is operative in the state Supreme Court, the three appellate courts, and then only in several metropolitan areas such as Saint Louis, Kansas City, Springfield. Try it, you will like it.

  13. Paul

    When it is the only system that exists then you move on to the left or the right. However, you are correct. Hillary is fueled by the almighty dollar just like her opponents.

    Irrespective of left or right, someday Americans have to wake up and realize that the great experiment is not what it is supposed to be. The best are not those who represent the voter. This was woefully apparent between 2000 and 2008.

    Somewhere our perverted system has to give way to a proper method of choosing leaders. Those that state that money buying exposure is the American way are the greatest obstacles to democracy in America.

  14. TO ASSURE THAT ACTIONS COMPORT WITH LITERAL LAW.

    NOT TO LEGISLATE.

    NOT TO EXECUTE.

    THE SINGULAR AMERICAN FAILURE SINCE ABRAHAM LINCOLN’S “REIGN OF TERROR”

    HAS BEEN AND IS THE JUDICIAL BRANCH.

    “CHECKS AND BALANCES” AND IMPEACHMENT AND CONVICTION OF ELECTED AND APPOINTED

    OFFICIALS SHOULD HAVE HAD THE FREQUENCY AND LINES AS LONG AS THOSE AT

    THE “GUILLOTINES” OF THE FRENCH REVOLUTION.

    THE AMERICAN FOUNDING DOCUMENTS HAVE BEEN DISMISSED AND

    ARIBITRARILY NULLIFIED WITH IMPUNITY.

  16. I do hope we are all reminded of the arguments here when we think about Hillary and the Clinton Foundation.

  18. Annie, I’m not so sure that Walker was really elected. I think there were some election day shenanigans that played a part.

    I have no idea of how to better select judges considering the buying of governors and legislators that seems to be rampant. If we could count on honest elections, without money but with honest counting of the votes, and maybe the League of Women Voters (remember them?) providing factual information about candidates we’d have a chance of electing good judges. NYS elects judges but, quite honestly, I have never had a clue as to who they are and I try to know before I get to the voting booth.

  19. The ‘two choice’ system of government in the US places pretty much every issue in the conservative or the liberal camp. If a government official or judge is to get support he or she has to bend over for every one in one or the other camps. The closer to the center where most people exist, the less funding by the absolutist left or right wing factions. It comes down to money because there is no civilly developed system of funding expression when it comes to voting in the US.

    In Canada and other countries the government funds elections for the large part. Private or collective funding is severely limited. The US should look in this direction in reestablishing its democratic system. As it is it is an oligarchy, something on the surface Americans are supposed to despise.

    It is ironical to some degree that the Supreme Court and Roberts are drawing the line at electing judges via purchasing them when the Supreme Court has done so much to enhance the purchasing of our supposedly elected officials, ironic or hypocritical; what to you think?

  20. I think they won’t recuse themselves and will rule in favor of Walker when they decide the case. I heard there were not even going to be oral arguments. This is NOT what democracy looks like. Poor, poor Wisconsin, but that is what you get when the majority of the electorate is stupid and votes for these crooks three times. The majority deserve what they got, the rest of us Wisconsinites just have to bear it until the rest of the electorate wises up. The polling indicates they just might be. Walker’s favorable ratings are at an all time low, Russ Feingold is running for the U.S.Senate and the polling indicates he is wayyyy ahead on that ignoramus Johnson. Maybe we can rescue our state before it resembles Mississippi even more than it already does.

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