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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In Wisconsin, can somebody please get this slug off the bench?

The face of right-wing thuggery in Wisconsin?
Quick, somebody get this goon off the bench.

"In a fit of temper, you were screaming at the chief; calling her [Chief Justice Shirley Abrahamson] a 'bitch,' threatening her with '. . . I will destroy you'; and describing the means of destruction as a war against her 'and it won't be a ground war.'"

-- from an e-mail, newly made public, sent by Wisconsin Supreme Court Justice Ann Walsh Bradley to fellow Justice David Prosser on Feb. 28, 2010 (reported by RawStory's David Edwards)

"I probably overreacted, but I think it was entirely warranted. They [Chief Justice Abrahamson and Justice Bradley] are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing."

-- Justice Prosser, last week to the
Milwaukee-Wisconsin Journal Sentinel

by Ken

First, let me get this straight. Stuff like calling the Supreme Court chief justice "bitch" and telling her you're going to destroy her and it won't be a ground war -- in Justice Prosser's mind, these are "perhaps incautious statements."

And, oh yes, presumably in the light of calm reflection, it was all "entirely warranted." Well, sure, the bullying, abusive bitches made him do it.

And this guy is sitting on the Wisconsin Supreme Court, and thinks voters should reelect him on April 5. Presumably, as his campaign director, Brian Nemoir, was quoted as saying in a December campaign press release: "Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense complement to both the new administration and Legislature."

Is there any reason to think that any of the four Republican justices on the current court think any differently? As Prosser campaign director Nemoir notes in his picturesque tribute to judicial responsibility and propriety, the balance of the court hinges on the now-upcoming election. If state Assistant Attorney General JoAnne Kloppenburg defeats Prosser, it switches back to a 4-3 Democratic majority, and there's hope that the court could return to concern for, you know, the law, and perhaps even occasionally put a brake on Gov. Scott Walker's novel "The law is whatever the heck I say it is" approach to governance.

As Kloppenburg put it in a Madison.com op-ed: "This race is about returning independence and impartiality to the court. "It’s about electing justices who haven’t prejudged cases and who see the judiciary as a co-equal branch of government and a check and balance against overreaching by the executive and legislative branches, not as a 'complement' to their political agenda."

Here's the start of David Edwards's RawStory report (links and footnotes onsite):

WI justice admits he called female colleague a ‘bitch,’ threatened to ‘destroy’ her

By David Edwards
March 21, 2011 @ 3:06 pm

The anger of one conservative Wisconsin Supreme Court justice boiled over last year when he called a fellow justice a "bitch" and threatened to "destroy" her, according to a published report.

Justice David Prosser reportedly made the comments to Chief Justice Shirley Abrahamson following a February 2010 debate over whether another justice should have been forced off criminal cases.

"In the context of this, I said, 'You are a total bitch,'" Prosser admitted to the Mulwaukee-Wisconsin Journal Sentinel [1] last week.

The conservative justice told the paper that he had made the comments because Abrahamson had tried to undermine and embarrass him.

"I probably overreacted, but I think it was entirely warranted," he said. "They (Abrahamson and Justice Ann Walsh Bradley) are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing."

Bradley allowed the paper to review emails sent between the justices after the blow up.

"In a fit of temper, you were screaming at the chief; calling her a 'bitch,' threatening her with '. . . I will destroy you'; and describing the means of destruction as a war against her 'and it won't be a ground war,'" one email sent from Bradley to Prosser on Feb. 18, 2010 said.

The admission that he one called the chief justice a "bitch" follows a spotted history on women's isssues.

In 1990, while serving as a Wisconsin state Representative, Prosser argued [2] that teen women would lie about being raped to get an abortion.

As a Supreme Court justice in 2010, he voted to uphold a circuit court decision [3] that said the City of Milwaukee’s Paid Sick Leave Ordinance did not adequately disclose that leave could be used related to domestic and sexual violence.

While District Attorney of Outagamie County in 1979, Prosser had also refused to prosecute a priest that had allegedly sexually abused two children.

"I was ready to take the stand," Troy Merryfield, one of the abused children, told the Journal Sentinel years later [4]. "He (Prosser) said it would be too embarrassing for a kid my age and said what jury would believe a kid testifying against a priest?"

Howie's written about the Wisconsin Supreme Court election, of course, but in general I've been alarmed by how little we've been hearing about it. Perhaps the situation is different in-state. Still, I worry about surly undercurrents in and out of the state that may be supporting Governor Walker, albeit not as vocally as before as more and more Wisconsinites recoil at his Stalinist coup fronting for the Koch brothers and their allies. And if money can make a difference, I think of Iowa and worry that the Right will easily shovel in whatever it takes.


UPDATE: WHAT YOU CAN DO

A commenter has left a link for more alarming information about Justice Prosser, and also a link for the Kloppenburg campaign with ways you can help, in-state or out, including phone-banking. I really hate judicial elections, but where that's the system, we have no choice but to compete as hard as the other side. Again, just think of Iowa. Right now the Wisconsin election is a really important one.

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Category Five Electoral Storm in Palm Beach County

When most people think about Florida politics, especially Palm Beach County politics, they think of corrupted elections. It was Palm Beach County's butterfly ballots that gave Bush the opportunity to steal the 2000 election. But the electoral rot there didn't end in 2000 and it Al Gore is far from the only victim. A close friend of DWT who practices law in south Florida and would prefer to remain anonymous for reasons that will soon become obvious, sent this report along today:


With all of the big news, no one seems to have noticed an increasingly scandalous judicial election in Palm Beach County. The longer I've waited to publicize it, the more the plot has thickened. At this point, so many things have happened so quickly, bringing in parties and organizations that have both personal and national implications, that its all I can do to scratch the surface. As for the national implications, suffice it to say we should all pray that Obama has already reached 270 before the Palm Beach County results are tabulated. 
 
On August 26th, Palm Beach County conducted a local election. At stake were a few Congressional primaries, three spirited judicial races (offices which are usually uncontested), a three way race to elect the new State Attorney, and other local offices. One race of particular interest to me was between the incumbent Circuit Court judge, Richard Wennet, and the challenger, Bill Abramson.
 
Each candidate is notorious in the Palm Beach County criminal defense bar and bench. Judge Wennet has served on the bench for 24 years.He is widely considered to be the meanest, most callous judge in Palm Beach County. He virtually always sentences everyone to the statutory maximum, regardless of the individual circumstances of the case. He routinely rules against the defendant and for the state, with virtually no consideration of the law or arguments, and his rulings are reversed more often than any other trial judge in Florida. Most judges do not like to be reversed. Judge Wennet does not seem to care.
 
Bill Abramson has been a private criminal defense attorney in Palm Beach County for many years.  He is known for acting out in court, and has been banned from several courtrooms. His courtroom antics are generally frowned upon by other criminal defense lawyers, but, many of us would find him preferable to Judge Wennet, (and the anarchist in me would love to see everyone squirm when they're forced to give him the respect due to a judge).
 
Those are the candidates. Now, the juicy back-story. In 2005, Mr. Abramson was conducting a trial in front of Judge Wennet. He filed a pre-trial motion which may have disposed of the case without a trial. Judge Wennet refused to hear the motion, and began interviewing potential jurors. Mr. Abramson would not stand for this, continuing to interrupt the judge as he attempted to go through the preliminary jury questionnaire. Judge Wennet ultimately filed a bar complaint against Mr. Abramson, and Mr. Abramson filed ethics complaints against the judge. More on this later…

But let's fast forward to Judge Wennet's macaca moment which occurred in 2007. From the Palm Beach Post: 

Wennet was secretly videotaped last year on Peanut Island by a woman on probation whom he once dated. On the videotape, posted on YouTube, the judge apparently was looking at a topless sunbather and commented on her "breasticles."

Julie Ann Domotor was arrested for illegally videotaping Wennet and violating her probation. She spent 83 days in jail before agreeing to a plea deal. Among the lawyers who represented her: Abramson.

This year, the ongoing feud continued when Mr. Abramson filed to run against Judge Wennet.  Although Judge Wennet received endorsements from most of the high-profile Palm Beach County lawyers, Abramson received some endorsements, raised some money, and turned it into a very, very close race. Closer than Bush-Gore in Palm Beach County. But, that's okay. Palm Beach County has had 8 years to get its act together, right?
 
On August 26th, after the initial tabulation, Abramson had beaten Wennet by 17 votes out of over 102,000 cast. This triggered an automatic recount, which concluded on Labor Day. The results of the recount put Wennet ahead by 60 votes. But there were missing ballots. Lots of them.  Three thousand four hundred seventy-eight of them.
 
September 4th, 2008: election officials announced that they had found 2700 of the missing ballots. Shortly, confounding everyone, again, they announced that only 957 ballots had been found. How they made this mistake is even more confusing than how they could have lost the ballots to begin with. See: 
 
September 5th, 2008: the County Election Canvassing Board finally gave up when a third count produced a still different result and tally. Meanwhile, the state canvassing board, chaired by Gov. Charlie Crist, refused to certify the election along with all of the others. Both candidates pledged to sue if the other was declared the winner. See: 
 
September 8th, 2008: Mr. Abramson filed suit before Leon County Circuit Judge Charles Francis, seeking to have the results of the recount thrown out. Judge Wennet, in keeping with his style, decided to bypass the judiciary system and go straight to the executive. He asked Gov. Crist to allow a re-vote on the November 4th election. Gov. Crist quickly said no. 
 
September 12th, 2008: A three-day audit revealed 102,772 ballots-- 249 more than originally counted. Just as county workers were reconciling the numbers, closing the margin to 66, Judge Francis ordered that no one be allowed to touch any ballots. Until the Judge lifts the seal, the tabulation center is being guarded by police. One concern was that the continued handling of the ballots would make it difficult for a machine to read them later. 
 
So… what was the problem to begin with? It would appear that there was no foul play in answering yet another question of "are they corrupt of just incompetent?"

The process for recovering the ballots was time-consuming and complex, Merriman said.

It quickly became apparent that the problem was caused by a collosal organizational failure, said Commissioner Mary McCarty. The ballots, which should be segregated by precinct, got mixed together and workers were unable to keep track of which boxes had already been run through high-speed machines during the recount and which hadn't.

McCarty said Merriman's team discovered at least six boxes of ballots that hadn't been run through the machines during the recount.

But the plot thickens even more… remember that old bar complaint? The one from 2005? The one that started this whole feud? Well, funny story… it still has not been resolved. And, guess what?  On Monday, "in an unusual move," The Florida Bar is asking the state Supreme Court to ignore the referee's recommendation, and instead suspend Mr. Abramson's license for 91 days. 
 
Unusual indeed. Unusual and suspect. The Florida Bar Association's "referee," Thomas Lynch, had listened to five days of testimony regarding the incident, finding fault with both parties. Specifically, he found that Mr. Abramson should have followed the Judge's orders to sit down and be quiet, and that he should not have made disparaging remarks about the Judge to the jury panel. This referee had initially determined, however, that Mr. Abramson's conduct did not rise to a level requiring disbarment, or even a license suspension. He recommended a public reprimand-- essentially a mark on his record that could have implications for future jobs, clients, or bar complaints. One reason for his recommendation was that Mr. Abramson had been motivated by a desire to zealously advocate for his client, not pad his wallet. Normally, the Florida Bar accepts the recommendations of the referees in such matters, and sanctions accordingly.
 
What in the world might make Mr. Abramson's case different? It couldn't be the ongoing election dispute? Or that many of Wennet's contributors sit on the Florida Bar's Board of Governors. Or that the President of the Florida Bar Association, John White, is a partner at Gerald Richman's, the firm representing Judge Wennet. Can we say conflict of interest? Sure. But for Judge Wennet, who has rarely attempted to hide his pro-state, anti-defendant bias, I suppose its business as usual. 
 
What, you ask, would be the electoral consequences of such an action by the Florida Bar? A very good question. If Abramson were declared the winner of the election, and his license were revoked prior to his taking office in January, no one seems to know what happens. If the Supreme Court does not rule, then no action could be taken against him until after he leaves the bench. But interestingly…

The time period-- 91 rather than 90 days-- would force Abramson to take the added step of applying for reinstatement, proving that he has been rehabilitated, said attorney Kenneth Marvin, who is representing the Bar in its action against the 41-year-old who specializes in traffic cases.

If Abramson does not adequately prove that he has learned from his mistakes, another hearing would be held, delaying his reinstatement for another six to nine months, Marvin said.

"It's tough. It's tough," Marvin said of the process for reinstatement.

This is where it stands now. Forty-seven days from November 4th. Here's hoping this was a good test run to break in the new Sequoia machines-- one which everyone has learned from. Including the Obama campaign-- which should monitor every precinct in Palm Beach County, and prepare for the worst.