Choose Your Judges is an independent website dedicated to providing information to voters about judicial elections. On this site you can answer a brief series of questions regarding your preferences about judicial candidates, and the website will recommend judicial candidates based on your preferences.

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Choose Your Judges also provides facts about judicial elections and commentaries discussing different aspects of the intersection between politics and judges. For more information about how our method of recommending judicial candidates works, please click here.

 

Choose Your Judges website is currently preparing for the 2012 judicial elections.

Please check back in August 2012 for updated information on judicial candidates and discussion of the important issues for the 2012 judicial elections.

 

 

 

 

 

 

 

Polls Predict Close Race in Iowa, Republican victories in Ohio, Michigan

 

 

 In Iowa, where all three Justices up for retention are being challenged because of their votes (along with the rest of the Court) against a same-sex marriage ban, the most recent poll shows that 34% of likely voters will vote to retain all three Justices, while 37% will vote to remove all three Justices. 10% will vote to remove some but not all of the Justices, while 8% are not sure and 11% will not vote at all. Each Justice will need over 50% of voters to vote in favor of retention in order to keep his or her seat. The most common reason for rejecting the judges was that they do not reflect “the will of the people;” while the most common reason for retaining the judges was to prevent politics from affecting how judges do their jobs.

 

 In Michigan, where four major candidates are running for two open seats, the Republicans have an advantage in the polls: challenger Mary Beth Kelly and incumbent Robert Young are the first choice of 24% and 20% of voters, respectively. The Democratic candidates, incumbent Alton Davis and challenger Denise Langford Morris, lag far behind at 10% and 7% respectively. However, 37% of voters remain undecided, so the race could go either way. If the Republicans can hold onto Young’s seat and take back Davis’ seat, they will regain a 4-3 majority on the Court—and this time the four Republican Justices should all be reliable conservative votes.

 

 In Ohio, where two seats are up for grabs, both Republicans have comfortable leads. In the race for Associate Justice, Incumbent Republican Judith Ann Lanzinger is leading Democrat Mary Ann Trapp 65% to 32%. In the race for Chief Justice, Justice Maureen O’Connor is preferred by 68% of the voters, while current Chief Justice Eric Brown only receives 32%. Of course, if O’Connor wins the seat, she will vacate her own seat as associate Justice at the beginning of the year, leaving a vacancy for Ohio’s new governor to fill. The only catch is that nobody can predict who that governor will be—incumbent Democrat Ted Strickland and Republican John Kasich are in a dead heat. If Strickland wins, he may simply re-appoint Brown to O’Connor’s empty seat; if Kasich wins, he will no doubt appoint a Republican, and the Court will once again have no Democrats. (There is a third Supreme Court election in Ohio, in which incumbent Republican Justice Paul Pfeiffer is running unopposed).

 

 Two other retention-election states being tracked by this website, California and Illinois, have not produced any reliable poll data for their Supreme Court races. In California, this is understandable, since the three Justices up for retention have not faced any real opposition and are expected to be retained by comfortable margins. In Illinois, however, Chief Justice Kilbride has been <blog>targeted for his allegedly anti-business decisions (though the opposition’s attack ads have mostly gone after Kilbride for his allegedly “pro-criminal” decisions—something of a stretch given Kildbride’s endorsements from law enforcement organizations). Under Illinois law, Kilbride needs 60% of the vote to be retained, and the strength of the opposition leads to some doubts as to whether Kilbride can reach that threshold.

 

 

 

 

Newsweek Reports on Factual Inaccuracies in Judicial Advertising

 

 As with any other type of political attack ad, inaccuracies in judicial advertising are not hard to find. In this article, Newsweek magazine looks at the most egregious factual inaccuracies in various Supreme Court races. The three most egregious misleading ads are attack ads against Robert Young (Michigan), Thomas Kilbride (Illinois), and the three Iowa Supreme Court Justices.

 

New Low in Michigan Attack Ad

 

The Michigan Supreme Court Justice races, already poisoned by the excessive partisanship of the Court, have now reached a new low in campaign ads. A story from the Associated Press describes an advertisement created by the Michigan Democratic party against Judge Mary Beth Kelly, a Republican who is running for a seat on the Supreme Court, The advertisement tells the story of Ihab Maslamani, an 18-year old who went on a three-day crime spree that included numerous robberies and a murder. He had been in and out of the foster care system for his entire childhood, and had a significant criminal record, including drug charges, care theft, and escape from custody. After telling this story, the advertisement notes:

 

 “One judge oversaw it all; one judge did not put him in jail or have him deported. Judge Mary Beth Kelly just let him through the revolving door, despite the warning signs. She says she feels really bad.”

 

 On the screen is a picture of Judge Kelly with “I feel really badly…” in quotes—allegedly a statement she made to the Detroit Free Press about the case.

 

Even given the depressingly low standards of judicial advertising, this ad is deplorable. It is designed to tap into all the modern ugly prejudices that voters may have: the criminal involved was an illegal immigrant and has a Muslim-sounding name. In this way the ad mirrors the infamous "Willie Horton" advertisement that was run against Michael Dukakis in the 1988 Presidential campaign—an advertisement that has been widely criticized as having racist undertones.

 

 But the Maslamani ad is even worse than the Willie Horton ad, for two reasons. First, it implies that Judge Kelly could have put Maslamani in prison or had him deported before he committed his terrible crimes. Of course, the idea that a state juvenile court judge has the power to deport anyone is absurd, since only federal immigration authorities have that ability. And Judge Kelly has said that she had no option of putting Maslamani in prison for his earlier offenses, which is quite likely given the laws regarding juvenile offenders. Second, the ad takes Judge Kelly’s quote out of context: she told the Free Press that she felt "really badly” that the system did not allow her to put Maslamani in jail for his prior offenses—but the advertisement cuts out the end of her sentence to make it sound like she felt badly that she chose not to put him in jail. In other words, even though Judge Kelly was actually criticizing the juvenile justice system, the advertisement implies she was criticizing her own bad judgment—judgment which (allegedly) resulted in Maslamani remaining free to commit his horrible crimes.

 

 The Republicans are employing their own scare tactics in this campaign, releasing ads which state that Democratic candidate Denise Langford Morris has “a history of releasing dangerous criminals." Although this rather meaningless claim can't quite compare to the level of misinformation and bigotry of the Maslamani ad, it is still inappropriate to make such broad and sensationalist generalizations about a judge's record. Of course, what either of these commercials have to do with the question of which candidates are most qualified to sit on the Michigan Supreme Court remains an impenetrable mystery.

 

 

 Why So Many Unopposed Supreme Court Justices?

Seventeen states use retention elections for their Supreme Court Justices, meaning voters have a very limited choice: either keep the current Justice on the bench, or vote “no” and wait for the governor to appoint a new justice. These states are sometmes criticized by proponents of "contested" elections, which give voters a choice between two competing candidates. But in many so-called contested elections, voters have no choice at all, since the incumbent justice is running unopposed.

 

This year, over a million dollars has been spent so far on two races for the Ohio Supreme Court—and yet the election for the third contested seat this year has already been decided: Justice Paul Pfeiffer is running unopposed (for the second time in a row), with no Democrat even willing to challenge him. This is not an unusual occurrence: nationwide, out of 34 state Supreme Court races, 12 of them are unopposed—an impressive 35% of state Supreme Court Justices who will automatically be re-elected. Nor is this year atypical: a recent study by Professor Herbert M. Kritzer (published at 56 DePaul Law Review 423) shows that over the past twenty years, over 30% of the state Supreme Court races nationwide have been uncontested

 

 By comparison, in the 2008 election, only 49 out of 435 House seats were uncontested—approximately 11% of the races. This is only one-third the rate of Supreme Court elections—and House elections involve many Congressional districts which are situated in overwhelmingly liberal or conservative areas, making it pointless to challenge to the dominant party. By contrast, most Supreme Court elections are statewide, like elections for Senator or Governor, which are rarely—if ever—unopposed. In 2010, there are thirty-seven Senatorial elections, and only one candidate is running unopposed; there are thirty-nine gubernatorial contests, and no candidate is running unopposed.

 

 What is going on here? Supreme Court Justices wield considerable influence over a state’s laws, and the amount of money being spent on Supreme Court elections shows that parties and advocacy groups realize their importance. Perhaps potential challengers are deterred by the belief that incumbent Supreme Court Justices have an enormous advantage in these races (one argument is that most voters know very little about candidates running for Supreme Court, and so will tend to vote for the incumbent on the basis that he or she has more experience). But the incumbency advantage for Supreme Court Justices is actually much lower than for comparable races. Judges who challenge incumbents for Supreme Court seats have won approximately 25% of the time over the past twelve years. By comparison, only 8% of candidates who challenge incumbents for the United States House are successful, and only 5%-20% of those who challenge sitting Senators prevail.

 

 In short, there appears to be room for quite a bit more competition in Supreme Court elections. For all the talk about judicial elections becoming overly political, over a third of the sitting Supreme Court Justices are so politically untouchable that the opposing party does not see any point in trying to unseat them. (Ironically, this includes the two justices up for re-election in the state of Nevada, where the ballot includes a proposal to switch from contested elections to retention elections. Voters in Nevada are likely to reject that proposal, since they want to retain their right to vote on judges—even though this year they have no choice whatsoever in their Supreme Court elections).

 

 

NPR Story on Illinois Supreme Court Race

 

 National Public Radio aired this story about Chief Justice Thomas Kilbride in Illinois. Chief Justice Kilbride comes across as a reluctant warrior, pressed into battling for campaign dollars like a common politician by his aggressive opponents. The story also points out that he appears to be a successful warrior, having out-raised his opponents by a large margin.

 

 

Yet Another Strange Chapter Added to Saga of Michigan Race

 

 Justice Robert Young, who is running for re-election to the Michigan Supreme Court, recently confirmed that he used the “N-word” when discussing a case in a private conference with other Justices. Young is African-American, and he claims he was merely making an “impassioned plea” regarding the rights and dignity of an individual involved in the case. Meanwhile, former Justice Weaver—whom Young and his Republican colleagues essentially forced off the court—is campaigning heavily against Young. Most recently, she reported that Young suggested beginning a letter to the director of a state agency by calling the director an “ignorant slut”—presumably a reference to Dan Akroyd’s recurring line in the old Saturday Night Live’s Weekend Update debates. Young says he cannot recall saying any such thing.

 

Nevada Becomes the Latest Battleground in the Judicial Elections Dispute

 

                       

One of the most interesting “judicial elections” on state ballots this November does not involve any specific candidates: in Nevada, citizens are voting on a ballot measure that proposes to change the way judges are selected in the state. Currently, Nevada (along with 22 other states) holds contested elections to determine who gets to be a judge. Nevada Ballot Question #1 will ask voters whether they want to switch to a retention system, in which judges are appointed by the governor. (The governor in turn must choose from a small group of candidates who have been nominated by a neutral state bar commission). Under the proposed Nevada system, the newly appointed judges would serve out their term (a minimum of one year) and then stand for retention election, retaining their seats if they received approval from at least 55% of the electorate. (Why 55%? That seems to be a mystery. Illinois requires 60%, and almost every other state merely requires a simple majority).

 

Prior to the retention election, the same neutral state bar commission would evaluate the judges' performances and release their findings to the public—but as we note elsewhere, those “evaluations” tend to be rubber stamps. For that matter, retention elections themselves usually resemble nothing more than expensive coronations, although this year conservatives in Iowa, Illinois, Kansas, and Colorado are hoping to change that trend.

The debate over how best to select judges has been going on for centuries, and recently former Supreme Court Justice Sandra Day O’Connor has launched an aggressive campaign against judicial elections. But Nevadans have already had two prior opportunities to switch to a retention system, in 1972 and 1988, and each time they have rejected the proposal. It looks like this time will be no different: a recent poll showed 54% opposed to the plan and only 27% in favor of it.

But the very fact that this issue is on the ballot provides some interesting evidence about who gains politically or economically from a switch away from contested elections. The politicians seem to like the idea: as a Constitutional amendment, the proposal had to be approved by a majority of both houses of the state legislature—in two separate sessions—before it was placed on the ballot. (It passed both houses in 2007 and 2009 by more than a 2-1 margin). The Nevada Chamber of Commerce and the AFL-CIO reached a rare consensus in endorsing the proposal. Even more telling is who is paying to finance the campaign to pass the proposal. A recent article tracks the $354,000 that has been raised so far in favor of the proposal: of the top eight donors, four are big law firms and the other four are big casino companies.

The financial support from large law firms—or from lawyers in general—is not too surprising. In contested elections, judicial candidates frequently solicit campaign contributions from the very lawyers who practice in front of them, setting up an appearance of impropriety as well as putting the lawyers in a very difficult spot. And the conventional wisdom—whether true or not—is that appointment and retention systems result in a higher quality bench than contested elections, so lawyers could conceivably be seeking to put better judges on the bench.

 

  But why are the Vegas casinos donating tens of thousands of dollars to support this campaign? One might think the biggest industry in Nevada would prefer a system in which they could influence the composition of the bench with their deep pockets—if not by outright buying a judgeship, then at least by encouraging judges to rule in their favor in the hopes of getting a generous campaign donation at election time. A spokesperson for Wynn Resorts, which donated $30,000, said that the ballot measure “feels like the right thing for the people of Nevada," but citizens can be forgiven for having suspicions when a large company donates money to a political cause merely for the good of the people.

 

 Perhaps the biggest mystery of all: if big business, the chamber of commerce, the unions, and a supermajority of both houses of two sessions of the state legislature support the change to retention elections, why is the proposal trailing by twenty points in the polls? One reason is that it is an amendment to the state Constitution, which voters are understandably reluctant to approve unless there is some clear crisis that must be averted—which is not the case here. But most of those who oppose the change resent the fact that their “right to vote is being taken away”—an unappealing thought, especially in libertarian-leaning Nevada. Of course, many voters—in Nevada and elsewhere— leave the judicial portion of their ballots blank each November. Nevertheless, Nevada voters seem to believe that a fundamental right is at stake, however rarely exercised.

 

Campaign Spending Heats up in Supreme Court Elections

 

 The last week before the election typically sees a dramatic increase in the amount of spending, but preliminary figures are already in for a number of  high-profile races:

 

 In Iowa, groups seeking to remove three Justices for their votes overturning a same sex marriage ban have spent $539,000, while those supporting retention have spent $117,000. 

In Illinois, supporters of embattled Chief Justice Thomas Kilbride have raised $2.1 million,

while conservative groups seeking to unseat him have raised $561,000. 

In Ohio, the Republican candidates and their supporters have spent $1.1 million on television advertising alone, while their Democratic counterparts have yet to advertise on television. 

 

In Colorado, an anti-tax group seeking to remove some of the Supreme Court Justices seems to be out of money after having raised barely$33,000.

 

To compare these figures, it is important to consider the size of the state where the advertisements are running:

 

 

Iowa:   Spending = $656,000; Population = 3 million;

 

Ratio = 22 cents/citizen

 

 

Illinois:   Spending = $2.6 million; Population = 12.9 million;

 

Ratio = 21 cents/citizen

 

 

Ohio:    Spending (TV ads only) = $1.1 million; Population = 11.5 million;

 

Ratio =10 cents/citizen

 

 

Colorado:   Spending (opponents only)=$33,000; Population = 5 million;

 

Ratio = .6 cents/citizen

 

 

 

Iowa, Ohio, and Colorado are races involving multiple judges, whereas the Illinois numbers are from one specific race.  So at this point it looks like Illinois is “winning” the campaign spending contest.

 

 

 

In other election news, the organization Justice at Stake has compiled

current examples of attack advertisements from the judicial races in Michigan, Iowa, and Illinois.  Of particular interest is an ad from the Iowa race, which begins by criticizing the “ruling class” who “say it’s wrong for voters to hold Supreme Court justices accountable for their decisions.”  This is indicative of the divide between the populists, who want to treat judges as politicians and punish them for unpopular decisions, and the “elitists,” who believe judges should be somewhat insulated from politics.

 

 

 

Soap Opera on Michigan Supreme Court

 

 

On July 31, 2006, Michigan lawyers perusing the most recent decisions of their Supreme Court came across this extraordinary passage in a concurring opinion:

 

“With her dissent, [Michigan Supreme Court] Justice [Elizabeth] Weaver completes a transformation begun five years ago, when all six of her colleagues voted not to renew her tenure as Chief Justice of this Court. This transformation is based neither on principle nor on ‘independent’ views, but is rooted in personal resentment. This transformation culminates today in irresponsible and false charges that four of her colleagues are ‘bias[ed] and prejudice[d]’ against attorney Geoffrey Fieger and therefore must be disqualified from hearing his cases…”

 

This concurrence was written by the Chief Justice of the Court and joined by three other Justices. It marked yet another round of incivility and partisan bickering that has torn at the Michigan Supreme Court for the past decade. At the time, the Court was in theory safely in conservative hands, as it consisted of five Republicans and two Democrats. But Justice Weaver, who was originally elected to the Court as a Republican in 1994, had slowly but surely been drifting to the left, until by 2006 she would reliably vote with the two Democrats on the Court. It was this leftward drift that inspired the unprecedented attack excerpted above, signed by the four “true” Republicans on the Court, who saw Justice Weaver’s shifting judicial philosophy as nothing short of treason.

 

Democrats, sensing that they now effectively had three seats on the seven-member Court, went all out in 2008 to defeat Republican Chief Justice Clifford Taylor. The challenge was significant—no sitting Michigan Chief Justice had ever lost an election. But the Democrats poured millions of dollars into the race. Not to be outdone, the Republicans also spent millions—resulting in a record for campaign spending in a judicial election: $5.9 million for one seat. And the race got nasty. Democratic challenger Diane Hathaway ran television ads showing Chief Justice Taylor asleep on the bench (in a “dramatization”), while Taylor depicted Hathaway as lenient on terrorists and sexual predators. In the end, Hathaway defeated Taylor, giving the Democrats another seat on the bench. The Court immediately voted in Hathaway as the new Chief Justice—with the three Democrats and Justice Weaver providing the necessary four votes. The Democrats had now effectively taken over the Court.

Justice Weaver’s betrayal was now complete. In May 12, 2010, three fellow Republicans announced that they had sent a letter to the Judicial Tenure Commission of Michigan, which reviews ethical violations by judges, alleging that Weaver disclosed the court's internal deliberations with an attorney involved in a case before the court. Weaver shot back immediately, issuing an extraordinary press release in which she stated that the charges were politically motivated and that the other Republicans on the Court wanted to turn the Court into a “secret club” and “suppress her dissents.”

Weaver was up for re-election in 2010, and—unsurprisingly—she decided not to run, since she was unlikely to get support from her party. However, Weaver won a final victory over her Republican opponents on the bench: rather than serve out the final months of her term, she decided to resign in August, allowing Democratic Governor Jennifer Granholm to appoint Democrat Alton Davis to replace her.

 

There are some reports that Weaver engaged in “secret negotiations” with the Governor, agreeing to resign her seat early and give the Governor the power to make the appointment only if the Governor agreed to appoint a new Justice from Weaver’s home region of Northern Michigan (which she in fact did). Whether this is true or not, Weaver’s decision to resign early not only gave the Democrats an actual (as opposed to a de facto) majority on the Court, it also allowed the new Justice Davis to run as an incumbent in November.

 

Now we are two weeks away from another pivotal election. Democrat Alton Davis, is running to keep his seat as a newly-minted incumbent. So is incumbent Robert Young, one of the Republicans who allegedly drove Weaver from the bench—and one of its most conservative members. Thus, the 4-3 Democratic majority is in danger—if voters keep Young but vote Davis off the bench, they will give the Republicans back their majority. Of course, Michigan voters could also keep the status quo or—if they vote Young off the bench but keep Davis—hand the Democrats a 5-2 supermajority.

 

Republican Mary Beth Kelly is running against Justice Davis. Meanwhile, Democrat Denise Langford-Morris is running against Justice Young. Both of the challengers are current appellate court justices; both seem perfectly well-qualified for the Court. But in this bitterly partisan atmosphere, it is unlikely that the qualifications of any of the candidates are going to be much of a factor in deciding the composition of the 2011 Michigan Supreme Court.

 

 

 

Illinois Chief Justice Under Fire

 

 

 

In some elections, opponents of a sitting Supreme Court Justice will target the incumbent because of one or two controversial decisions—for example, the conservatives who are trying to remove three Iowa Supreme Court justices because of their vote to overturn a ban on same-sex marriages. But voting against a judge because of one specific decision is troubling, for a couple of reasons.

 

 

First, although the voter may not agree with one specific high-profile decision by a given judge, there may be dozens of other decisions—less publicized, but no less important—in which the judge made decisions that the voter would agree with. And second, if judges believe that their jobs are in jeopardy based on one controversial decision, they may be overly influenced by poll numbers and decide high-profile cases based on what is popular, rather than exercising their independent interpretation of the applicable law.

 

 But it makes more sense to make a voting decision based on a judge’s pattern of decisions in a certain category of cases that matter to the voter—for example, if the judge consistently votes against criminal defendants in close cases of criminal procedure. In that case, the judge has demonstrated that she tends to interpret a defendant’s rights somewhat narrowly—and a voter can logically assume that the judge will continue to vote that way in the future.

 

 At first, the movement to remove Chief Justice Kilbride from the Illinois Supreme Court appears to be based on the first, flawed motive. Earlier this year, Justice Kilbride joined a four-justice majority that struck down a state law limiting damages in medical malpractice cases—angering business interests and medical special interests alike. Opponents of Justice Kilbride responded by beginning a campaign to unseat him.

 

 But in Kilbride’s case, the drive to oust him is based on more than just one high-profile case. Choose Your Judges has analyzed hundreds of Kilbride’s decisions, focusing on non-unanimous cases, in which reasonable judges can disagree about the interpretation of the applicable law. Over the past nine years, Justice Kilbride has participated in twenty-five non-unanimous personal injury cases, and has voted in favor of the individual plaintiff in sixteen of those cases. Over the same time period, he has participated in six non-unanimous medical malpractice cases, and ruled in favor of the plaintiff in four of those six cases. Thus, when the law is ambiguous or open to interpretation, Justice Kilbride tends to come down on the side of the injured individual rather than the corporation, doctor, or hospital that allegedly caused the injury.

 

 Of course, since Kilbride is a Justice on the Illinois Supreme Court, his votes in these cases affect more than just the parties in the case—when Kilbride joins a majority, he is helping to create a legal precedent which will affect all 13 million citizens of the state of Illinois.

 

 

 

Kilbride’s votes in other categories also fit into a recognizable pattern: he tends to vote in favor of criminal defendants, in favor of labor unions, and in favor of the taxpayer in cases against the Internal Revenue Service. Thus, Kilbride’s retention election appears to be a perfect example of a case in which voters know exactly what kind of judge they are getting if they return him to the bench.

 

Abortion Becomes an Issue in Kansas Judicial Election

 

 The right to an abortion is guaranteed by the Federal Constitution, and so every state court is bound by the rulings by the federal Supreme Court on the legality of abortion restrictions—from late-term abortions to parental notification rights to any other contested issue. Therefore, it is unusual for abortion to become a hot topic in a state Supreme Court election. But in Kansas, conservatives have begun a "fire Beier" movement in an attempt to remove Chief Justice Carol Beier from the bench, claiming she is “acting more like the defense attorney for Kansas abortion businesses rather than an impartial judge.”

 

 The dispute began in 2006, when then-Attorney General Phill Kline brought charges against Dr. George Tiller, a doctor who worked at a Planned Parenthood clinic in Witchita. Kline accused Tiller of illegally performing dozens of abortions on minors. In March of 2009, Tiller was found not guilty of all charges—but in May of that same year, he was murdered in his church by an anti-abortion activist.

 

What does this have to do with Chief Justice Beier and the Kansas Supreme Court? In pursuing his investigation, Attorney General Kline failed to properly safeguard the patient records that he had acquired from Planned Parenthood. In 2008, Planned Parenthood brought a contempt action against Kline regarding these records, and the case reached the Supreme Court. The Court unanimously agreed to sanction Kline (though it stopped short of holding him in contempt), and Justice Beier wrote a scathing majority opinion that criticized every aspect of how Kline had handled the case. Kline had become something of a hero to the Kansas right-to-life movement, and they perceived Beier’s attack on Kline’s conduct as a gratuitous personal vendetta.

 

 As it turns out, Beier was not alone in her criticism of Kline—his zealous conduct has run afoul of numerous local district attorneys and lower court judges. And of course Beier’s comments and her Court’s holding had no substantive effect on abortion law in Kansas, so removing her from the Court will do nothing to change how abortions are regulated in the state.

 

 In reality, the Beier-Kline dispute is probably only being used as a convenient rallying call for conservatives, who have (in perhaps a bit of hyperbole) called Beier one of the most liberal state court justices in the country. Conservatives are especially upset about a recent ruling by the Kansas Supreme Court which will require increased funding to public schools. But formulas for school funding are not likely to rally many voters to remove Beier from office. Indeed, in her last retention vote in 2004, over 76% of Kansans voted to retain her. No Kansas Supreme Court Justice has ever lost a retention vote—and it seems quite unlikely that a manufactured “controversy” over sanctions in an abortion case will be enough to reverse that trend.

 

 

Tax Revolt in Colorado Reaches the Supreme Court Elections

 

Colorado has joined Illinois and Iowa as states where conservatives have launched campaigns to oust sitting Supreme Court Judges in a retention election. In Iowa, the issue is the Court’s pro-gay marriage ruling in 2009. In Illinois, conservatives are angered by the Chief Justice’s allegedly anti-business rulings in personal injury cases.

 

 What is the complaint in Colorado? According to Clear the Bench Colorado, the issue is taxes. Under Colorado law, many new taxes or tax increases must be approved by the voters. Since this approval is famously hard to get, and since state governments have been in fiscal crisis, many states have found creative ways to raise income without having to get voters’ approval. In Colorado’s case, the legislature was able to raise “fees” instead of “taxes,” and was able to insert an “escalator” clause into property taxes, so that taxes would rise as property values rose. When the Supreme Court refused to strike down these revenue-raising strategies, the movement to “clear the bench” began. The group claims that the Supreme Court’s rulings on these issues are “unconstitutional” (Of course, once the Supreme Court approves a certain law, the law is—by definition—constitutional, because the Supreme Court has the final word on the matter. What the group really means to say is that it disagrees with how the Supreme Court has interpreted the state constitution).

 

 Clear the Bench Colorado not only attacks the judges it wants to remove from the bench, but also the state bar’s method of evaluating judges. Their website notes that the Colorado Commission on Judicial Performance Evaluations has always recommended that voters retain Supreme Court Justices, complaining that “[e]ven Fidel Castro and the late Saddam Hussein didn’t receive that level of “retain” votes!” As we have pointed out elsewhere on this website, the high level of positive recommendations from state bar commissions is certainly not unique to Colorado—judicial performance evaluations frequently result in a 99% or 100% “retain” recommendation.

 

 In response, Clear the Bench offers its own “evaluations,” which are little more than a repetition of the organization’s ideology—all three Justices deserve a “no” vote because of their “unconstitutional” ruling regarding taxes and various other rulings. These types of “performance evaluations” are in reality no more useful than the rubber-stamp evaluations that the group criticizes, since they can only provide useful guidance to voters who agree with the group’s underlying ideology. (For more information on what voters should take into consideration when electing judges, see our commentary on judicial election evaluations.

 

 

Retention Elections—Recalls or Referendums?

 

Seventeen states use “retention elections” for their Supreme Court Justices—that is, the Justice is appointed (usually by the governor), and perhaps confirmed (usually by the legislature),

 

Retention Elections—Recalls or Referendums?.You could look at retention elections in one of two ways. The most common way of viewing retention elections is like a built-in recall election—that is, if a judge commits some dramatic indiscretion or begins ignoring the law altogether, voters have the power to remove the maverick judge from the bench. This is what we might call a “passive” theory of retention elections, since the voters do nothing unless roused to action by a particularly corrupt or incompetent judge.

 

The second way to look at a retention election is like a referendum—a chance for the voters to review how the judge has been performing over the past term and then decide whether the performance warrants a second term. If the voters mostly agree with how the judge has been performing, they will award the judge a second term. If the voters do not agree with the judge’s performance, they will vote him or her off the bench. We can call this the “active” theory of retention elections, since it relies on voters actively monitoring a judge’s performance and then passing judgment on it.

 

The passive retention theory—retention-as-recall—seems like a very inefficient method of monitoring a judge’s behavior. If a judge misbehaves in some dramatic way, the state could set up other, cheaper ways to remove him or her from office—either impeachment by the legislature or removal by the state bar. Both of these bodies would be better qualified to decide whether the judge’s actions warranted the dramatic step of removal from the bench, and both would be less likely to abuse the process.

 

On the other hand, the active retention theory runs the risk of politicizing the judiciary—voters will review the judge’s performance not on whether or not the judge is competent or applies the law correctly, but rather based on whether they agree politically with the judge’s rulings. A judge who wants to keep his or her job will have to consider the political ramifications of each decision, knowing that the voters are looking over his or her shoulder.

 

In reality, retention elections fall into the “recall” category, if only because most voters know nothing about the judges running for retention and so either automatically vote to confirm or ignore that portion of the ballot altogether. And, because most judges are not corrupt or incompetent, there is generally no reason to “recall” them from the bench. Retention rates for judges routinely run at around 99%, and a majority of states have never had a Supreme Court Justice lose a retention election.

 

But there are exceptions: when a special interest group rises up to challenge a judge for a specific decision or pattern of decisions, a retention election can turn into a referendum on the judge’s decisions. The most famous example of this occurred in 1986, when California voters voted not to retain three members of their Supreme Court (Rose Bird, Cruz Reynoso, and Joseph Grodin) because of their consistent rulings overturning death penalties that had been imposed by juries (Justice Bird, for example, voted to overturn the jury-imposed death penalties in all 64 cases that came up for review during her time on the Court). Social conservatives led an anti-retention campaign and were joined by some pro-business groups, who disliked the Justices’ rulings on contract and business law. In the end, Justice Bird lost her bid for retention by a wide margin: 67% to 33%.

 

The recall/referendum distinction ultimately comes down to the standard voters when voting in a retention election: does being appointed by the governor mean you keep your job unless you are clearly unfit for the bench, or does it merely mean you get to be a judge for one term in order to build up a record that voters can use to determine whether they agree with your decisions? Voters in retention states need to decide for themselves how they want to treat these elections.

 

 

Why Governor’s Races Matter for Retention Elections

 

 Voters who decide not to retain their judges have an important issue to consider: who will replace the judge that they are throwing out? This all depends on who gets to appoint a judge to the empty seat—and in most cases, that person is the state’s governor. Thus, if a Republican voter does not like a current judge’s “liberal” rulings, but knows that a Democratic governor will have the power to appoint someone to the empty seat, the voter should think twice before throwing the judge out of office.

 

 In the Rose Bird case, California Republicans opposed to Bird and her two fellow Justices had nothing to worry about: Governor George Deukmejian (R) was in the middle of his term and could be counted on to appoint three conservative Justices to fill the empty seats (which he in fact did).

But California voters this year have no such certainty: Governor Schwarzenegger (R) is not running for another term, and so by the time the current Justices’ term retires, a new governor will be in place to replace any ousted judges (bother the governor’s term and the Justice’s term end on January 3, 2011). The latest poll in the race put Jerry Brown (D) slightly ahead of Meg Whitman (R), but the race is still quite close: voters who go the polls in November will have to make a decision on retaining their justices without being sure about who will make the decision to replace any justices who are not retained.

 

Things are a little bit simpler in Iowa, where three Justices who voted against the state’s gay-marriage ban are facing a well-publicized anti-retention campaign by a conservative group. There, the latest polls show that Terry Branstad (R) has a commanding lead over Chet Culver (D). Thus, Iowa voters who want to get rid of these three Justices can be fairly confident that a Republican governor will replace them. Of course, this is no guarantee that the Justices the Republican governor will appoint will follow some sort of “party line”—in fact, one of the three Justices being targeted by the anti-gay marriage group is Chief Justice Marsha Ternus, who herself was appointed to the Court by a Republican governor in 1993. It may give conservative voters further pause to consider that the Republican governor who appointed her was none other than Terry Branstad during his earlier term as governor—the same man who will likely replace her if she is voted out of office.

 

Conservatives in Illinois can also be confident about who will replace any Justices that they remove this year: polls

show that Bill Brady (R) is leading Pat Quinn (D) by a respectable margin. Illinois is another state in which a Supreme Court Justice is facing an anti-retention campaign: Chief Justice Thomas Kilbride is being targeted by conservatives for his allegedly anti-business rulings from the bench. If conservatives succeed in driving him out of office, at least they can count on a Republican governor to appoint his replacement.

 

 

Robocalls in Iowa

 

As reported in an earlier blog post, a conservative group in Iowa is attempting to unseat three Iowa Supreme Court Justices for their 2009 decision supporting gay marriage. The Chicago Tribune reports that this group is now using robocalls to further their campaign. The call urges voters to “take[] back control of our government from political activist judges.” If a voter tries to call the group back, he or she receives a recorded message:

 

 “…I was just calling to remind you that one of the top ten political races in the entire country is buried at the bottom of your Iowa ballot. Voting no on the retention of three Iowa Supreme Court justices will send a clear message that we are taking back control of our government from political activist judges. These three judges overturned the overwhelming will of all Iowans and have opened the door to limitless control over our constitution. But we Iowans will not be overruled. On your ballot, vote ‘no’ on the three Supreme Court justices. Thanks for calling back. The project name is Iowa For Freedom.”

 

The robocalls are simply another example of tactics that are common in other types of campaigns now being extended to judicial elections. Modern judicial elections now feature heavy television advertising, including attack ads which occasionally distort the truth about the candidates.

 

 

Polls Show Iowa Retention Race is Tight

Even before the robocalls began, a Des Moines Register poll showed the retention rate to be a tossup—31% said they would vote to retain all three justices, 29% said they would vote against retention for all three, and 12% said they would vote to retain some but not all of the justices. Just as significant are the remaining voters: 12% are not sure whether they will vote to retain or not to retain, and 16% assert that they will not cast a vote in the retention elections. (The 16% figure is actually quite low for judicial elections; usually one-third or more of voters leave the judicial section of the ballot blank).

 

 All three justices up for retention have repeatedly said that they will not campaign in this election, even in the face of the close poll numbers and the aggressive tactics of the opposition. This may prove to be a mistake. It is true that no Iowa Supreme Court justice has ever lost a retention election, and they have averaged 75% “Yes” votes in retention elections since 1998, but this is a year in which conservative voters are likely to turn out in large numbers.

 

 Chief Justice Marsha Ternus, who is one of the three justices on the ballot this November, has warned against politicizing the judiciary, arguing that judges will find it harder to be fair and impartial if they are worried about how their decisions will affect their chances for re-election. Presumably her fear of politicizing the judiciary is driving her decision not to campaign for this election. But for better or for worse, the 2009 decision appears to have already politicized the Iowa Supreme Court elections.

 

If Chief Justice Ternus and her colleagues do decide to campaign, they would likely find support both from those who politically supported the decision on gay marriage, and from those who believe that judicial elections should be altogether apolitical –that is, that voters should make retention decisions based on a candidate’s competence and qualifications, and not based on whether they agree with specific legal decisions. Surely that coalition would be enough to turn back the anti-retention movement—but only if the candidates make an attempt to get their message out.

 

 

Judicial Ads on Television: the “Worst of the Worst?”

 

 

As we enter the final month of the election season, judicial campaigns will begin their television advertising in earnest. TV advertising is perhaps the most criticized aspect of judicial elections, both in terms of the misleading content and in terms of the amount of money spent. (For example, in the last election cycle, $45 million was spent on Supreme Court elections across the country, and nearly $20 million of that was spent on television advertising).

 

 But as noted in our commentary on campaign spending in judicial elections, the amount of money spent on judicial campaigns is actually quite small when compared to campaigns of similar importance. But more to the point, the amount of money spent on advertising is not as important as the content of the advertising. Voters know next to nothing about judicial candidates; television advertising—at least in theory—can educate them about who these candidates are and why they deserve to serve (or continue to serve) on the bench. On the other hand, some of the television advertisements may be misleading, or may encourage a voter to make a decision based on irrational reasons.

 

 Justice at Stake a non-partisan organization dedicated to “keeping politics out of the court,” has compiled an interesting video called “2000-2008 Worst Campaign Ads.” But not all of these “worst” ads are as bad as their critics make them out to be.

 

 Start out with the truly destructive and misleading advertisements. The absolute worst is a 2008 ad which attacks Louis Butler, a candidate for the Wisconsin Supreme Court, for his representation of a criminal defendant back in 1987. The advertisement claims that Butler “found a loophole” in the law which allowed a child rapist to go free and rape again; the ad implies that Butler “found a loophole” when presiding over the case as a judge, when in fact Butler was working as a public defender and the child rapist was his client. It would be far more troubling, of course, if Butler had not worked diligently to defend his client, since he was at the time bound by a strict code of legal ethics to represent his client zealously. Hopefully voters understand that criminal defense attorneys must do all they can within the law to defend their clients—even if their clients are alleged “child rapists”—since otherwise we no longer live under the rule of law.

 

 (As it turned out, the claims in the advertisement were false anyway; the defendant’s conviction stood up on appeal and the “child rapist” served a five-year sentence before being paroled).

 

 Other advertisements, however, are more ambiguous. For example, the video also shows an advertisement from the 2004 Illinois race in which a candidate for Supreme Court is attacked for having granted probation to a defendant who had been convicted of child molestation. Ads like this raise a fundamental question about judicial elections: what criteria should voters use when evaluating their candidates for judges? Are voters merely supposed to evaluate the judge’s background and read the recommendations of the bar association and ignore the actual decisions the judges have made? Or are voters supposed to have a say in the ideology of judges that serve on the bench? Certainly the ideology of federal judges seems to matter when the President nominates them and the Senate confirms them. For example, assume the President nominated a new candidate for the United States Supreme Court, and research showed that when she worked as a trial judge years before, she routinely handed down lower sentences than other judges on similar cases. It is hard to imagine that fact not being discussed in the media, or not being debated at the confirmation hearings. Why should voters not consider it when selecting a judge through the ballot box?

 

 Finally, the video shows a couple of advertisements that attack candidates for taking campaign contributions from corporations or other special interests. Aside from being somewhat silly in their presentations (one ad, for example, features miniature Justices holding wads of money and dancing inside the coat pocket of an insurance executive), it is hard to see why these ads deserve to be mentioned as some of the “worst” of the last decade. Why is it inappropriate to point out that a candidate for Supreme Court has received thousands of dollars from special interest groups? As in any other kind of election, the amount of money candidates raise—and who they raise it from—seems like fair game.

 

 In the end, it is unfair to criticize all judicial campaign advertisements based on the few that are egregious and misleading. A report put out by Justice at Stake—the same group that produced the “Worst of” video—contains a survey of over 170 Supreme Court campaign television advertisements in 2008. Of these, only 19—just over 10%--are classified as “attack ads.” The vast majority are classified as “traditional” or deal with substantive issues such as criminal or civil justice. Extreme or misleading attack ads are actually relatively rare, and for good reason: sometimes they work, but sometimes they backfire. Judicial candidates who cross the line and attack their opponents—particularly with outlandish or exaggerated claims—are engaging in risky behavior. Candidates who use these tactics—or who allows others to use them on their behalf—may end up doing little more than demonstrating that they themselves are unfit to be a judge.

 

Is Gay Marriage an Issue in Judicial Elections?

 

Over the past decade, gay marriage has become a significant political issue across the country. Currently there are three states in which unelected justices of a state’s Supreme Court ruled that barring same-sex marriage violated the state Constitution: Massachusetts (11/18/03); California (6/16/08); and Iowa (4/3/09). (There are four additional states in which gay marriage has been legalized through statute by elected representatives).

 In Massachusetts, voters who did not agree with the ruling had no recourse against the justices who decided it: Massachusetts is one of eleven states that do not provide for any type of judicial election. Voters in Massachusetts, of course, did have the opportunity to pass a Constitutional amendment to overturn the ruling—just like the voters in California did—but so far they have failed to do so.

 

In California and Iowa, however, the justices (who are initially appointed by the governor) must be retained by voters at the end of their terms. In 2008, no California Justices were up for retention. This year, however, three Iowa Justices are up for retention and three California Justices are up for retention Thus, this election will be the first time that voters have a chance to punish—or reward—the justices for their decisions on same-sex marriage.

 

 So how is it playing out so far? As it turns out, it is playing out very differently in California than in Iowa. Start in California, the site of a voter revolt twenty-four years ago in which three Supreme Court Justices were thrown out by voters because of their opposition to the death penalty. Two of the Justices currently up for retention found themselves on opposite sides of the same-sex decision: Justice Carlos Moreno (D) voted in favor of ending the ban, while Justice Ming Chin (R) voted with the dissent to allow the ban to stay in place. (The third Justice on the ballot, Tani Cantil-Sakauye, was only appointed to the Court a few weeks ago and did not participate in the same-sex marriage decision). The decision was a very close one (4-3), which means that reasonable judges could (and did) disagree about whether the California Constitution protects the right of homosexuals to marry. Thus, it seems Justice Moreno should be an obvious target for voters who are opposed to gay marriage (which, according to the success of the 2008 ballot measure amending the Constitution to ban gay marriage, constitute a majority of California voters). Yet the retention election has been a relatively quiet affair, with no mention of the same-sex marriage decision.

 

 This stands in stark contrast to Iowa, in which a conservative group is launching a campaign to try to convince Iowans to vote against retention for Justices Marsha Ternus, David Baker and Michael Streit as punishment for their participation in the same-sex marriage decision last year. But the Iowa decision was unanimous—meaning that there was not a single Justice on the Court that believed the gay marriage ban was consistent with the Iowa Constitution. And unlike in California, where a majority of voters actually overturned the ban with a Constitutional amendment, a majority of Iowans now favor gay marriage.

 

 

 

In other words, opponents of gay marriage are mounting a campaign to remove judges in a state in which the Constitution unequivocally supports the right of gay marriage, and in which a majority of voters approve of the decision—but in a state in which the Constitution could be interpreted either way, and in which a majority of voters support a ban on gay marriage, conservatives remain silent. What is going on? Presumably, the conservatives in Iowa are attacking their Justices out of frustration—they have been unable to overturn the decision at the ballot box, and so they now feel they need to attack the Justices themselves. In California, of course, the battle has moved on—anti-gay marriage advocates overturned the decision in 2008 election, and now a federal court judge has held that the new amendment conflicts with the federal Constitution. Conservatives have already “defeated” the state Justices by overturning their decision, and now they face a new battle in federal court, so they apparently feel no need to attack the state court Justices themselves.

 

 And one more mystery: why haven’t pro-gay marriage forces begun a campaign against Justice Chin for her dissent in the gay marriage case? Of course, she was on the losing side in this case, but her vote still demonstrates that in close cases, she may tend to vote against gay rights specifically, and perhaps against a broad, expansive-rights view of the state Constitution generally. This is part of a broader pattern: when campaigns begin to remove Justices in a retention election, the campaign almost always comes from the conservatives, who attack Justices who support gay rights, oppose the death penalty, allow broader taxing authority by the government, oppose abortion, or oppose limits on personal injury judgments. Generally liberals spend as much as conservatives in contested judicial elections, but when it comes to recalling Justices in a retention vote, conservatives seem to lash out at “activist” Justices far more often than liberals attack “timid” ones.

 

 

Political Dogfight in Ohio

 

Ohio judicial elections are officially “non-partisan,” that is, judicial candidates appear on the ballot without party affiliation. However, each party nominates a candidate, who is chosen in a primary election. Thus, the candidates do in fact have a party affiliation; it is simply not printed on the ballot. This unusual electoral rule came from a 1911 reform, when Democrats—reacting to Republican party dominance in Presidential elections in the 19th century—were able to change the rules so that voters who simply voted along party lines would not automatically vote for the Republican judicial candidates as well. Ironically, this masking of party affiliation has probably hurt the Democrats recently; from January of 2007 until April of 2010, all seven of Ohio’s Supreme Court Justices were Republicans. In a swing state that is now more or less evenly split between Republicans and Democrats, it is hard to imagine that this would occur if voters could see party affiliation on their judicial ballots. The Ohio Democratic party appears to agree: they filed a federal lawsuit demanding that party affiliation be placed on the ballot. In August the federal judge handling the case refused to change the ballots for the 2010 election, but the lawsuit is still progressing.

 Ohio’s Supreme Court recently changed other rules regarding judicial campaigning: candidates may now identify themselves as a Republican or a Democrat while campaigning in the general election (under the old rule, such self-identification was barred after the primary was over); candidates can directly solicit money when speaking to groups of twenty people or more; and candidates can sign some letters which directly solicit money. These changes were necessary after a federal Sixth Circuit court struck down similar restrictions in Kentucky on First Amendment grounds.

 In 2010, there are three seats up for re-election on the Ohio Supreme Court:
 

(1) Justice Maureen O’Connor (R) is running against Chief Justice Eric Brown (D) for the Chief Justice position. O’Connor was first elected to the Supreme Court in 2002 and re-elected in 2008. Brown is an unusual sort of incumbent in this race; at the beginning of 2010 he was running for this position from his seat as the judge for the Franklin County probate court. In April, Chief Justice Robert Moyer (who was retiring at the end of 2010) unexpectedly passed away, and Democratic Governor Ted Strickland appointed Brown to the Chief Justice post so that he could run as the “incumbent” Chief Justice. This move was generally criticized as overtly political—appointing a candidate for an office to the office he was running for in order to give him an advantage in the election.

 

 Regardless of how this election turns out, both Brown and O’Connor will likely remain on the court. If Brown wins, O’Connor will simply finish out her current term as Associate Justice, which runs until 2014. If O’Connor wins and replaces Brown as Chief Justice, her elevation to Chief will create a vacancy for Governor Strickland to fill, and he will almost certainly appoint Brown to finish out O’Connor’s term. Either way, the Court will continue to have at least one Democrat on the bench.

 

 (2) Justice Judith Anne Lanzinger (R) is running to retain her seat against Judge Mary Jane Trapp (D) of the 11th District Court of Appeals. Lanzinger has served one term as a Supreme Court Justice, having first been elected in 2004. Trapp was elected to the 11th District appellate court in 2006 and is currently the Presiding/Administrative judge of that court.

 

 (3) Finally, Justice Paul Pfieffer (R) is running unopposed for re-election. He was first elected in 1992, and he won re-election in 1998 and 2004 (he was unopposed in 2004 as well).

 

 

The campaigns have taken a few nasty turns so far. The Republicans filed a complaint with the Supreme Court’s disciplinary panel in June against Brown, claiming that Chief Justice Brown violated the Judicial Rules of Conduct. Judicial rules forbid sitting judges from personally soliciting money from supporters; Brown made phone calls encouraging supporters to attend a campaign fundraiser. Brown denied that he broke the rules, since he did not himself solicit any money, but said he would not make any more such calls.

 

 The Democrats then filed a complaint against O’Connor and Lazinger for allegedly violating the Judicial Rules of Conduct when they (sort of) endorsed each other in the election. The rules forbid sitting Justices to endorse other judges, and O’Connor apparently came close to the line when she was attending a campaign function in February and said: "We are not allowed, as members of the judiciary, to endorse one another or any other campaign, so I would not tell you how much I would endorse Justice Lanzinger if I could." Later, Lazinger made a similar “indirect” endorsement of O’Connor, saying that Lazinger’s family would be voting for O’Connor in the election.

 

 The disciplinary panel has dismissed the charges against O’Connor and Lanzinger, finding no probable cause to support them, but the complaint against Brown is still pending.

 

 Meanwhile, O’Connor has made claims that Brown was fired from a job at the Attorney General Office some years ago, while Brown has argued that O’Connor has politicized the Court by bypassing him as Chief Justice when proposing budgets for the Supreme Court. The Columbus Dispatch recently wrote a brief summary of the current state of the race.

 

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