Judicial Demagoguery

Over thirty years ago (even before I saw This Is Spinal Tap), I happened to be sitting in a hotel room in Reno, Nevada, just before an election, and to my horror saw a series of TV ads for candidates running for the State Supreme Court. “They called me the ‘hanging judge,’ said a former trial judge in one. “I’ll always vote against the criminal,” said another. It was savage judicial demagoguery at its worst, which I had never been exposed to back in Georgia because the state bar’s ethics code for lawyers strictly prohibited this sort of campaigning in elections of judges (you were pretty much limited to advertising endorsements).

I remembered those early 80s ads in Nevada today when reading about the assault on North Carolina Supreme Court Justice Robin Hudson, who could well lose her judgeship in a nonpartisan primary today. The New York Times‘ Erik Eckholm has the story:

The ad first appeared on television the Friday before last, a black-and-white spot charging that Justice Robin Hudson coddled child molesters and “sided with the predators” in a North Carolina Supreme Court dissent. It has run constantly since.

As notable as the ad’s content and frequency, though, is its source. It was created and aired not by one of Justice Hudson’s two opponents in Tuesday’s primary election, but by a group that had just received $650,000 from the Republican State Leadership Committee in Washington, which pools donations from corporations and individuals to promote conservatives in state politics and is now broadening its scope to target judicial races.

The sums have been unusual for such elections. The primary race for Justice Hudson’s Supreme Court seat alone has drawn more than $1 million — the bulk of it by independent groups including the Republican committee and an arm of the state Chamber of Commerce, which has spent $250,000 to promote both of her opponents with money from companies including Reynolds American, Blue Cross Blue Shield and Koch Industries.

Needless to say, these interests care absolutely nothing about the criminal justice issues mentioned in the ads against Hudson. But they sure would like a Supreme Court beholden to them that is sympathetic on legal issues affecting regulation of or litigation against large corporations. And it’s not a phenomenon distinctive to North Carolina:

Judges on higher courts are elected rather than appointed in 22 states, and in 16 more they must face retention elections at some point after their selection, according to Justice at Stake, an advocacy group in Washington. Corporations and political parties — and trial lawyers and unions — seek ideologically compatible state judges, legal experts say, because their rulings can affect redistricting and laws on such key issues as liability, medical malpractice and workers’ compensation.

The growing influx of interest group spending is transforming judicial elections and raising concerns about conflicts of interest. In 2012, $30 million was spent nationwide on television advertising for state court races, often involving attack ads, according to a report last fall by the Brennan Center, Justice at Stake and the National Institute on Money in State Politics.

“Judicial races are getting swamped in this tidal wave of political money,” said Bert Brandenburg, a former Justice Department official who is the executive director of Justice at Stake.

If Hudson loses, it could soon be political open season on judges that don’t give potential donors to these kinds of campaigns a very wide berth.

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Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.