Judges are supposed to make decisions based on the law, not politics. But in 38 states, judges get elected to their jobs, and judicial candidates are raising big bucks and running TV attack ads. Judicial candidates spent more money running for office in 2004 than ever before. Meanwhile, special interest groups poured millions of dollars into their campaigns. Will the mountains of cash corrupt the independence of the courts?

At a dance hall in rural West Virginia, incumbent Supreme Court Justice Warren McGraw stumps for votes in a hotly contested race three days before Election Day. A local band blasts rock 'n roll while dozens of Democratic Party supporters pick over the remains of a roast pig. Beer flows freely from a keg.

"I've never ever seen anybody so hot after a bunch of hillbillies as these people are now who's pouring this money in here from all outside our state to try to take over our government," McGraw says to the crowd.

Former West Virginia Supreme Court Justice Warren McGraw
(Photo © Steve Payne 2004)

The race for a seat on the West Virginia Supreme Court was mean and expensive. Over $5 million was spent by the candidates and their supporters, a staggering amount in this small state. The incumbent McGraw raked in donations from trial lawyers and unions. His opponent, corporate attorney Brent Benjamin, was the favorite candidate of big business and big coal. One of his major backers was the CEO of Massey Energy Company, the largest coal producer in the region. The company happened to be fighting off a major lawsuit headed to the West Virginia Supreme Court. That prompted many in these parts to say that Massey was out to buy itself a judge. At a senior center out on the campaign trail, Brent Benjamin vowed that no amount of money could influence his vote.

"With respect to people that are supporting me," says Benjamin, "my position has been the same, which is: if the law's in your favor, then I may find for you. If it's against you, then understand that I may find against you, that's the way it is. … That's what I stand for."

But the West Virginia race is one of many that worry legal experts about the erosion of judicial independence.

Newly elected West Virginia Justice Brent Benjamin

"When we compare the lists of actual contributors to the lists of people who show up in Supreme Court cases," says Samantha Sanchez from the Institute on Money in State Politics, a nonpartisan watchdog group, "we find that in some states, 75 percent of the cases before the Supreme Court involve at least one contributor. And I think that undermines our sense of fairness in the judicial system."

It used to be that local laws and codes of ethics kept judicial contests from getting too overtly partisan. But in 2002, the U.S. Supreme Court decided that state judges should be allowed to speak more openly about political issues when they campaign. More special-interest money flowed into local races.

This month, 43 newly elected judges take their seats on the supreme courts of 20 states. The final tallies aren't in, but the cost of November's judicial elections will likely top the record $45 million spent in 2000. The campaign money mainly came from business interests and their trial lawyer and union opponents.

And like most modern political contests, the factions in West Virginia spent a lot of their money on TV ads. Nasty TV ads that included lines like, "McGraw agreed to let this convicted child rapist work as a janitor in a West Virginia school. Letting a child rapist free to go work in our schools?"

Another ad asked, "Who is Brent Benjamin? The man a Daily Mail column says 'doesn't mind destroying a life to get what he wants.' Who really is Brent Benjamin? Someone who goes too far to get elected, who is funded by out of state corporate interests who expect him to rule for them on the supreme court and against working people."

Across the country last year, state judicial candidates and their supporters spent twice as much money on expensive TV spots as they did in 2002.

Deborah Goldberg from the Brennan Center for Justice at New York University
(Photo courtesy of John Glenn Institute)

The more a judicial seat looks like any other political prize, the less people will trust their judges worries Deborah Goldberg from the Brennan Center for Justice at New York University. "It gives them the sense that justice is for sale. "Their candidates are raising and spending huge amounts of special interest money, and for people who want to go in before a fair and impartial judge, their confidence level is greatly reduced. They begin to lose the sense of what the judiciary is all about. And they begin to see the judges as if they were just another politician."

When the West Virginia race ended, Brent Benjamin defeated Warren McGraw by a comfortable margin, thanks in part to the more than $3 million Massey Coal CEO Don Blankenship spent on the race. At an election night party, Blankenship was elated. And he defended the money he spent.

"I've never bought a vote," said Blankenship. "All I did was set out to make the public aware of the issues and … what choices they should make … and I think they've done that tonight. … It's a great thing for the kids and a great thing for the future of West Virginia."

West Virginia Supreme Court Justice Larry Starcher
(Photo courtesy of Supreme Court of Appeals of West Virgina)

But in an unusual show of political candor from a sitting judge, West Virginia Supreme Court Justice Larry Starcher lashed out that same night saying, "We're going to see Massey Coal and a bunch of out of state insurance companies and huge mega corporations buy a seat on our supreme court, and I'll be very sad to sit on that supreme court for the next four years quite frankly."

West Virginia was far from alone in partisan fights. "The problem has really spilled out beyond a few problem states, it's truly a national problem," says Burt Brandenburg from the Justice at Stake campaign, a nonpartisan court monitoring group. "2004 was the tipping point year and now no state that elects judges is safe from a rising tide of special interest pressure on their court elections."

For instance, a record $9 million was spent in a highly negative campaign in Illinois. Candidate Loyd Karmeier was backed by the U.S. Chamber of Commerce. The Chamber has poured tens of millions of dollars into state judicial races in recent years. It even secretly funded a southern Illinois community newspaper that boosted Karmeier's campaign. His opponent, Gordon Maag was heavily funded by trial lawyers. Karmeier raised more money, and won.

Some states are trying to limit the influence of money and politics on the courts. Last November, North Carolina became the first state to elect a Supreme Court judge using a comprehensive public financing system for judicial elections. Samantha Sanchez of the Institute on Money in State Politics hopes more states will follow suit.

"I think we all have an interest in thinking and believing and knowing that our judges are paid by the citizens and no private individual," says Sanchez. "So I think that's going to be a trend, at least we all hope it will be, to take politics out … of judicial elections and allow judges to be elected based on their qualifications."

Some say special interests have a right be heard in judicial elections. Jan Baran is a Washington lawyer who has represented the U.S. Chamber of Commerce and other business groups.

"I don't think that necessarily public communications about ones views is inherently corrupt," says Baran. "It may have an impact on the public and on judges but that doesn't necessarily mean they are being bought."

The money spigot is open and it will be difficult for any state to twist it shut.

"State judicial elections are like the fishing hole that has been discovered," says Bert Brandenburg of the nonpartisan Justice at Stake campaign. "No state that elects courts is safe. No state that elects judges will be immune from national special interests … coming in and trying to tip the balance of justice in a particular state. They want judges who will rule in their interests, not the public interest."

The U.S. Chamber of Commerce poured an estimated $50 million into state judicial races over the past six years. Labor and trial lawyer groups have also amassed a reservoir of campaign cash. And partisans on all sides are prepping for the next major round of state judicial elections in 2006.

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Justice for Sale? is produced by William Kistner and edited by Chris Farrell. For American RadioWorks, the senior producer is Sasha Aslanian, project manager is Misha Quill, mixing by Mitch Hanley, assistant producer is Ellen Guettler, web producer is Ochen Kaylan, and production assistance from Zachary Johnson. The executive editor is Stephen Smith, and the executive producer is Bill Buzenberg. For Marketplace, the editor is Nate Dimeo, senior producer is Celeste Wesson and executive producer is J. J. Yore.

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