The New Yorker's Jeffrey Toobin worries about "Judges for Sale"

from the Center for American Progress (download pdf here)

"In 1990 candidates for state supreme courts only raised around $3 million, but by the mid-nineties, campaigns were raking in more than five times that amount, fueled by extremely costly races in Alabama and Texas. The 2000 race saw high-court candidates raise more than $45 million."

-- from a new Center for American Progress report
by Billy Corriher, "Big Business Taking Over Supreme Courts"

"When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law."

-- retired U.S. Supreme Court Justice Sandra Day O'Connor,
in a May 2010 NYT op-ed piece, "Take Justice Off the Ballot"

by Ken

Both of the above quotations come from an important new blogpost by The New Yorker's Jeffrey Toobin, "Judges for Sale." Yes, ladies and germs, while we've been watching open-mouthed as all that right-wing money is poured into the presidential contest, and now more and more into congressional and even state-legislative races, it turns out that the moneyed elites have been buying up state supreme courts all over the country at relative discount prices.

Last night, in quoting from Adam Gopnik's new New Yorker piece on the history of Mormonism and how it's expressed in today's Top Mormon ("I, Nephi: Mormonism and its meanings"), in the section about Willard Inc. I focused on the portions that suggested a religious basis for his "any responsibility to his own past -- the consuming sense that his life and opinions can be remade at a moment's need." But I was also careful to include Gopnik's sense that the who-and-what of Willard doesn't require a religious explanation, beyond his own faith's utter congeniality with a culture of money-making.

Yet class surely tells more than creed when it comes to American manners, and Romney is better understood as a late-twentieth-century American tycoon than as any kind of believer. Most of what is distinct about him seems specific to the rich managerial class of the nineteen-eighties and nineties, and is best explained so -- just as you would grasp more about Jack Kennedy from F. Scott Fitzgerald (an Irish and a Catholic ascending to Wasp manners) than from St. Augustine. In another way, though, this is precisely where faith really does walk in, since commerce and belief seem complementary in Romney's tradition. It's just that this tradition is not merely Mormon. Joseph Smith's strange faith has become a denomination within the bigger creed of commerce. It's unfair to say, as some might, that Mitt Romney believes in nothing except his own ambition. He believes, with shining certainty, in his own success, and, more broadly, in the American Gospel of Wealth that lies behind it: the idea that rich people got rich by being good, that the riches are a sign of their virtue, and that they should therefore be allowed to rule.

Then again, almost every American religion sooner or later becomes a Gospel of Wealth. . . .

We don't usually study U.S. history from the vantage point of how much, at any given moment in that history, the economic elites are getting their way. (We probably should. I'm just saying we usually don't. If we could plot it on a graph, I'm guessing we would see the elites having their way pretty overwhelmingly through much of our history and then over the course of the 20th century suffering some of the slings of democratization. Clearly by the Age of Reagan they were asking themselves why they were allowing their will to be thwarted by people who just didn't have enough economic clout to warrant anywhere near that kind of say. And while the Reaganite Right was narcotizing moronified non-elite right-wing enablers with heapings of simpatico crackpot ideology, our former masters were retaking the reins.

We saw the effect on a supreme court of this mixture of crackpot ideology and Daddy Warbucks-style wealth in the electoral vengeance wrought on the Iowa justices for their temerity in failing to capitulate to sociopathic Christian Right hate-mongering. But that turns out to have been merely a more visible manifestation than many others.

Here's Jeffrey Toobin in his current New Yorker blogpost:

Thirty-nine states elect judges to their highest courts. (Fortunately, New York does not, though many lower-court judges in the state stand for election.) State courts decide about ninety-five per cent of the cases in American courts. The federal courts, where the judges are nominated by the President and confirmed by the Senate, hear only about five per cent, though those appointments get far more attention. Criminal prosecutions, civil lawsuits, child-custody matters, personal injuries -- almost all are decided in state courts, under rules established by each state supreme court.

For many years, these contests were rather sleepy affairs, followed mostly by lawyers (and not many of them). The big changes began in the nineteen-eighties, and the partisan lines were clear. Plaintiffs' lawyers in personal-injury cases funded Democratic candidates for judgeships; defense lawyers in these cases -- especially those representing insurance companies and large corporations -- supported Republicans. For a time, the battle was something of standoff, but Republicans gained the upper hand in the nineties, especially in the South, where they were making big gains across the board. (Karl Rove first became famous because of his victories in Texas judicial elections.)

A new report, issued yesterday by the left-leaning Center for American Progress, shows that the race for control of state judiciaries has become a rout. The report, entitled "Big Business Taking over State Supreme Courts," found that,

Fueled by money from corporate interests and lobbyists, spending on judicial campaigns has exploded in the last two decades. In 1990 candidates for state supreme courts only raised around $3 million. . . .

[Then the quote continues as above.]

As we already know, by 2000 that $3 million had exploded to $45 million.

In the subsequent decade, the numbers have only grown bigger. As the report notes, "more than 90 percent of special interest TV ads in 2006 were paid for by pro-business interest groups. Conservative groups spent $8.9 million in high court elections in 2010, compared to just $2.5 million from progressive groups.”

"The problem of money in judicial elections has a straightforward solution," Gopnik writes. "Appointive state judiciaries."

The systems vary in states without supreme-court elections. Some, like New Jersey, give a great deal of power to the governor; the “Missouri plan,” which has also been adopted by several other states, uses non-partisan commissions to present finalists to the governor; other states, like California, allow the governor to choose supreme-court justices, who are then subject to occasional retention elections by the voters. Any of these are preferable to the grotesque spectacles that pass for judicial elections in states like Ohio, Michigan, Alabama, and (of course) Texas.

Then Toobin quotes Justice O'Connor, who has been "in recent years" -- since her retirement from the Court in 2006 -- "the leader of the fight for an appointive judiciary." Maybe we should hear once again what she had to say:

When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law."

"But it’s clear now," Gopnik writes, "that in many states you should worry -- a lot."

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