Electing judges is a “dreadful” idea, Justice Ruth Bader Ginsburg told an interviewer in Chautauqua, New York on Monday. “Judges are to be impartial. They are to judge without fear or favor. They are not to be beholden to any group. But it may be a little hard, if a group of lawyers has funded your campaign, for you to be impartial, or even if you are, to project the appearance of being impartial.”
Ginsburg’s comments allude to a rush of campaign funds spent by powerful interest groups seeking to change the rules they have to operate under by filling the courts with judges favorable to their interests — an effort that Ginsburg’s conservative colleagues have largely abetted. Although the Supreme Court did intervene in a particularly egregious case where a West Virginia coal baron spent $3 million to place a judge on that state’s supreme court — the newly elected judge then overturned a $50 million verdict against the coal magnate’s company — four of Ginsburg’s five conservative colleagues voted not to intervene in this case.
Meanwhile, after the conservative majority on the Wisconsin Supreme Court allowed to corporate interest groups to write ethics rules permitting the justices to preside over cases involving their major campaign donors, a conservative justice’s narrowly successful bid for reelection descended into a bidding war between corporate donors pleased with his record and unions and other progressive groups hoping to move the court in a different direction. After the corporate candidate won reelection, he cast the key vote reinstating an anti-union law.
Nor is this problem limited to states like Wisconsin and West Virginia. A former Texas Supreme Court justice elevated to the federal bench by President George W. Bush took thousands of dollars in campaign donations from Enron, then wrote an opinion reducing Enron’s taxes by $1.5 million. The National Rifle Association donated at least $6 million to a group known for attack ads accusing judges of being soft on crime — one ad in particular accused an African American judge of being “soft on crime for rappers, lawyers, and child pornographers.” In 2012, at least 11 state supreme court justices benefited from at least a million dollars of spending on their behalf.
A recent study published by the progressive American Constitution Society found that “a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time,” with the most pronounced effects among Democratic judges. As the study explained “[j]udges who are not ideologically or otherwise predisposed to vote in favor of business interests might….cast votes in cases either to obtain financial support from those business interests for their future campaigns, or at least to reduce incentives for….attacks funded by business interests.”