Suppose you were a judge. Not just any judge but a member of the highest court in your state, specifically the Supreme Court of West Virginia. You owe this august position not so much to your innate legal ability as to the fact that a wealthy coal magnate spent $3 million in the last election to smear your opponent with negative advertising.
Now, suppose your benefactor just happens to have some business before the tribunal where you now answer to the title of “Your Honor” – a little matter of a $50 million award for punitive damages. Your colleagues are split 2-2. If you recuse yourself, the trial court’s award will be upheld on a tie vote. What to do, what to do?
“No problema,” said newly minted Justice (now, Chief Justice) Brent Benjamin, who refused repeated calls to recuse himself after being elected to the court in 2004 and cast the decisive vote in a pair of 3-to-2 decisions that threw out the $50 million jury verdict against Massey Energy, the coal company headed by free-spending Don Blankenship. The $3 million Blankenship spent ensuring the defeat of incumbent Justice Warren R. McGraw thus saved him $47 million, a 1,667 percent rate of return on Blankenship’s investment in his own peculiar brand of “tort reform.”
If you’re a fan of author John Grisham, you may recognize the plot of his latest legal thriller, The Appeal, which Grisham admits was inspired by the events in West Virginia. And as rank as the fictional outcome or the real events may seem to fair-minded Americans, the same outrage could have been perpetrated in any of the thirty-nine states that still elect at least some of their judges in contested elections.
Justice at Stake reports more than $200 million has been spend on elections for state supreme courts alone in the last ten years. West Virginia tried to rein in the influence of big money on its judicial elections by limiting contributions to such campaigns to $1,000. But after Blankenship contributed the $1,000 maximum to Benjamin’s campaign directly, there was nothing to stop him from spending as much as he wanted on the negative campaign to defeat Benjamin’s opponent.
The U.S. Supreme Court has explicitly blessed such so-called “independent campaigns” as a protected form of free speech – as long as the puppet-masters paying the bills don’t coordinate directly with their puppets. Say you want to elect challenger John Barleycorn over incumbent U.S. Sen. Virginia Trueheart, whose pro-consumer record is annoying to your bottom line. As long as you don’t say “Vote for Barleycorn” or “Defeat Trueheart,” you’re free to wage as dirty and as expensive a campaign as you like.
That’s why every election brings those silly ads distorting candidates’ records and claiming: “Senator Virginia Trueheart voted against a bill to give electric blankets to every newborn puppy in America. Call Virginia Trueheart and tell her to stop hating warm puppies! This ad paid for by Citizens for Warm Puppies.”
Coloradans aren’t immune from such stupidities at election time. But at least in the Centennial state, such profiles in vilification spare our courts. That’s because our voters adopted a merit selection system in 1966. As the Colorado Bar Association reports, when there is a judicial vacancy, interested attorneys may apply for the position. Their names and applications are sent to a bipartisan nominating commission in their district composed of four laypeople and three attorneys. The commission sends two or three recommendations to the governor who appoints one of the nominees to fill the vacancy. Once chosen, a judge serves a provisional term of two years and then his or her name is on the next general election ballot. After that first time before the voters, County Court judges are up for retention every four years, District Court judges are up every six years, Court of Appeals judges every eight years and Supreme Court judges every ten years.
To help voters decide whether to retain or not retain a judge, evaluations are done periodically by the State Commission on Judicial Performance, which is composed of six non-lawyers and four lawyers. These evaluations give voters something to go on, and the process also gives feedback to judges so they can improve their performance. Beginning with the 2010 election, evaluations of judges will be included in the “Blue Book,” published by the legislature and sent to every registered voter in the state.
This system is infinitely preferable to letting rich litigators rig the scales of justice by paying millions to elect judges predisposed to their side to the courts that will decide the manipulators’ cases.
As it happens, earlier this month the U. S. Supreme Court ruled in the case of Caperton v. Massey Coal Co. and concluded that the U.S. Constitution’s due process clause can require a state judge to abstain when a party in a case before that judge has had a “significant or disproportionate” influence on placing the judge on the court through large campaign contributions. Judges have been required to abstain if they have a direct financial interest in the outcome of a case ever since the 1927 U.S. Supreme Court ruling in Tumey v. Ohio. Now, there will be at least some redress in outrageous cases like the one in West Virginia. But the real answer is for the thirty nine states that still elect judges in contested elections to adopt merit systems like Colorado’s.
In this office, we are strong supporters of keeping Colorado courts fair and impartial in the face of efforts by politicians like former state Sen. John Andrews to bring the courts under the control of special interests. Since retiring from The Denver Post last year, our director of research and communications, Bob Ewegen, has served as Journalist in Residence for the Colorado Judicial Institute, which fights to keep Colorado courts free from political pressure. CJI also gives annual “Judicial Excellence” awards to honor outstanding judges in Colorado. It has also raised $195,000 to help provide advanced education and training for Colorado judges and judicial department personnel.
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