JUDGE: AMERICAN JUSTICE FOR SALE
I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There.
How money is ruining America’s courts.
I felt trapped. I had made it to the top of my
profession. I was the chief justice of Alabama, the first woman to head
the state Supreme Court. It was, for a lawyer like myself, the pinnacle
of achievement. And I’d earned it the hard way. To get to the justice’s
chambers, I had won the nation’s most expensive judicial race that
year. But at what cost?I had needed $2.6 million to win—and that money had to come from somewhere. My opponent had raised even more, nearly $5 million in all. It’s terribly awkward and uncomfortable for a judge to have to ask for campaign money. But how are you going to win without it? My biggest concern is how shameful all of this looks to the public.
Two days after my election in 2006, I was with my daughter, Caitlin, on a school field trip when my cellphone rang. A reporter from a national legal publication was calling. Would she ask, I thought, about my election as Alabama’s first female chief justice? Or my plans for reform after holding court in some 40 of Alabama’s 67 counties over 25 years?
I was mortified. And while I was proud of the work I did for the next 4 1/2 years, I never quite got over the feeling of being trapped inside a system whose very structure left me feeling disgusted. I assure you: I’ve never made a decision in a case in which I sided with a party because of a campaign donation. But those of us seeking judicial office sometimes find ourselves doing things that feel awfully unsavory.
No one is immune from these pressures. Not even me.
The reporter’s questions were valid in 2006. And they still are. How do we convince Americans that justice isn’t for sale—when in 39 states, it is?
***
The phone calls always started with chitchat: How’s the family? How’s your law practice going?
It was fun catching up with old friends and acquaintances until the
point when I had to steer them toward the real reason I was calling.
“I’d
very much appreciate your support for my campaign,” I’d say,
religiously avoiding the “ask” and handing the phone to my finance
director when it came time to talk real money.
The
money was important. In Alabama, you don’t get to mete out justice
without spending millions of dollars. I had my money; my opponent had
his. The race for dollars reached new heights when a poll showed that I
had a real chance of winning despite being a Democrat and the underdog,
leading my opponent and his supporters to significantly increase their
fundraising. And I had to answer in the best way I could—by trying to
raise more money—or risk falling woefully behind. The amounts are
utterly obscene.
In Alabama, would-be judges are
allowed to ask for money directly. We can make calls not just to the
usual friends and family but to lawyers who have appeared before us,
lawyers who are likely to appear before us, officials with companies who
may very well have interests before the court. And I did.
Where
do you draw the line? If you ask for money from lawyers who appear in
your court, it’s untenable for you. It’s also untenable for them. I may
not have directly asked for money or collected the check, but in my
heated campaign to become chief justice, I did reach out to everyone and
anyone I could.
The simple fact is: I had to. Judicial elections have
become just as overwhelmed by money as all the other contests in
American politics, even if we tend to forget that in Alabama and 38
other states, judges have to stand for election. And if you’re running
for office, it means you have to raise money. Lots of money. And that
meant phone calls. Lots of phone calls.
The money,
as it flowed in to me—check after check for as little as $5 from an
individual donor to more than $200,000 from the Alabama Democratic Party
to $638,000 from a well-known PAC that accepted money from a variety of
businesses and law firms—went to the same place that it goes in other
political races: to feed the TV ads and the consultants who make them.
Yes,
to run for judge means pitching yourself to the public just as if you
were running for dogcatcher. Many ads for judicial candidates I’ve seen
are downright terrifying, with would-be judges bashing opponents as if
they were evil incarnate. These candidates were portrayed as judges who,
if given the chance, would release child molesters and murderers and
order them to move in next door. Nothing could be further from the
truth. But dignity and fairness are too often the first casualties in
these kinds of endeavors. How else to explain a campaign ad from
the late 1990s in which one candidate for the Alabama Supreme Court,
who was revered by many in the bench and bar, nevertheless gave in to
pressure from his campaign consultants and ran an ad comparing his
opponent to a skunk? The ad opens with the image of the animal and is
replaced by a photograph of the opponent as the narrator explains, “Some
things you can smell a mile away. … You can smell how bad this man’s
ideas are no matter where you live in Alabama.”
I worked for years with former state Representative
Jeffrey McLaughlin to eliminate partisan races for judicial office that
often make these campaigns overtly and inappropriately political and
tend to drive up the amount of money spent by outside groups. And each
time—whether the legislature was controlled by Democrats or
Republicans—we couldn’t make headway. McLaughlin even recounts how one
Republican legislator threatened lawmakers of his own party that if they
voted to eliminate partisan judicial races, he would ensure they would
face primary opponents in their next campaigns.
Here’s
the thing: Donors want clarity, certainty even, that the judicial
candidates they support view the world as they do and will rule
accordingly. To them, the idea of impartial and fair judges is an
abstraction. They want to know that the investments they make by
donating money to a candidate will yield favorable results. For
businesses, this means judges who are skeptical of, or hostile to,
malpractice suits and product liability claims. For unions, it
translates to backing those who see business, especially Big Business,
as the enemy.
Opposing sides frequently give lip
service to seeking justice, but that’s not what they mean. They’re not
thinking about the fact that our rulings bind not just those who appear
before us but every resident of the state, whether it’s a matter
involving an allegedly faulty product or an unpaid worker’s comp claim
or a property owner’s fight against a government entity trying to seize
his building. No, what these special interests want is simply to win.
This helps to explain why judicial elections have become awash in money,
with some $275 million spent on such campaigns since 2000, as each side tries to stack the bench with judges it trusts are on their team.
But public trust is eroded when
judicial candidates are forced to court big donors and spenders. And
outright corruption can occur too, as we saw in Arkansas recently when a
former state circuit judge pleaded guilty to
having reduced a jury’s negligence award against a health care business
in exchange for a campaign bribe. It was no coincidence, it turns out,
that the owner of the business had funneled thousands of dollars to the
judge’s campaign fund just as the judge had an epiphany: He slashed to
$1 million the jury’s $5.2 million award because the original amount
“shocked the conscience.” That’s not the only thing shocking about this
case.
***
When a judge asks a lawyer who
appears in his or her court for a campaign check, it’s about as close
as you can get to legalized extortion. Lawyers who appear in your court,
whose cases are in your hands, are the ones most interested in giving.
It’s human nature: Who would want to risk offending the judge presiding
over your case by refusing to donate to her campaign? They almost never
say no—even when they can’t afford it.
Here’s how I
know: Although Alabama allows me to press potential donors for specific
amounts of money, I had my own personal ban on directly asking for
checks during my race for chief justice. When I phoned an attorney and
secured a pledge of support, my finance director would take over to ask
for a promise of a specific dollar figure and when it could be expected.
I made the initial contact because it was more likely that the would-be
donors would take my call—someone they often knew personally or had
heard of through the media or court appearances; it would have been much
easier not to pick up or return the calls of a stranger.
Geen opmerkingen:
Een reactie posten