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Elbows go out on bench

By RUTH MARCUS Washington Post
Published May 31, 2007


WASHINGTON - Sue Bell Cobb's first campaign, in 1982, cost $5, 000. Last year's price tag was $2.6-million - and Cobb, a Democrat, wasn't the big spender. Her opponent, Republican Drayton Nabers, raised nearly $5-million for the primary and general elections.

"A conservative leader, fighting for our values. A family man and the author of a book on the importance of biblical character, " one of Nabers' television ads proclaimed. Not all the commercials were so uplifting. Nabers' primary challenger labeled him soft on crime in an ad that featured an ominous photo of a hand holding a knife.

The general election was equally slashing: Nabers' ads accused Cobb of being "bankrolled by liberal personal injury trial lawyers and casino interests." Cobb, who won, said that Nabers had been "caught taking tens of thousands from PACs controlled by Exxon's lobbyists."

Modern-day politics as usual? Sadly, yes - except that the campaign was for chief justice of the Alabama Supreme Court. And while the race was particularly noisy, it wasn't particularly surprising. Judicial elections have taken on the trappings of ordinary political campaigns, complete with consultants, slick mailings and big media buys.

Time was that judicial candidates left the really nasty stuff to outside groups and political parties. But at a conference last week by FactCheck.org, campaign consultants reported that their once diffident clients had realized they couldn't hide behind their robes.

"Elections for the judiciary have become like all other elections, " said Allan Crow, who helped Georgia Supreme Court Justice Carol Hunstein win re-election. "You either allow the opposition to win by running their negative ads or you fight back."

"Negative" is too pallid to capture the tone of some ads. They pluck out and twist individual rulings, some dictated by precedent, to smear candidates. In the Kentucky Supreme Court race, one candidate said Circuit Judge Bill Cunningham "tried to make six rapists eligible for parole. One had been out on parole for only 12 hours when he raped a 14-year-old and made her mother watch." The ad made it appear that Cunningham was responsible for the rape, when that crime had occurred years earlier.

Not that the positive spots are especially comforting. They trot out qualities that ought to be irrelevant - does it matter that Cobb plays piano for her church? - and make assertions problematic for those pledged to not prejudge cases. "I'm prolife, " Nabers assured Alabama voters. "Abortion on demand is a tragedy, and the liberal judicial opinions that support it are wrong."

You might hope that spending by business groups and trial lawyers would at least cancel each other out. But business groups have become outsize players in judicial campaigns. In 2006, business interests contributed 44 percent of the money raised by state Supreme Court candidates.

The paradox of judicial elections is that voters simultaneously demand this system and distrust it. The Annenberg Public Policy Center found that nearly two in three preferred to elect judges rather than have a merit system in which governors choose from a list developed by a nonpartisan committee. Yet seven in 10 believed that the need to raise campaign funds would affect a judge's rulings. Even without the impact of campaign cash, it's easy to see how judges facing re-election might think twice before issuing a decision that could be fodder for a 30-second spot.

There are some hopeful signs amid the sludge. Judicial candidates raising more money won 68 percent of the time in 2006, down from 85 percent in 2004. Last month, New Mexico followed North Carolina's lead in adopting public financing for judicial campaigns.

Yet the judicial arms race is creeping further down the ballot. Illinois last year saw a $3.3-million campaign for a seat on the state's intermediate appeals court, and a $500, 000 trial court race. "Judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution, " warns former U.S. Supreme Court justice Sandra Day O'Connor. Prizefight is right - except in these brawls, the legal system ends up with the black eye.