October 24, 2004
Judicial Races in Several States Become Partisan Battlegrounds
By ADAM LIPTAK, NY TIMES

Judicial elections, which used to be staid and decorous affairs, have been transformed this year into loud and vicious fights, fueled by money, venom and television.

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Campaign spending has skyrocketed. In one Illinois race, two vying candidates have raised $5 million. In West Virginia, a group financed by business interests is spending $2.5 million to defeat a sitting State Supreme Court justice. About a third of the total spending nationwide comes from interest groups, much of it from the independent but partisan organizations known as 527's. Their main contributors are business interests and plaintiffs' lawyers, and their agenda is most often the election of judges who could help - or the defeat of judges who could hinder - efforts to impose limits on lawsuits seeking damages for injuries.

Voters in eight states are seeing television advertisements in judicial races for the first time. And the ads are as pointed as those used in races for legislative and executive positions. One charge, leveled in separate advertisements against sitting judges in two states, is that they released dangerous sexual predators.

When judges are not attacking their opponents, they are telling voters their views on the legal and political issues of the day, something they had avoided until a 2002 decision by the United States Supreme Court. Statements by judges on issues they might be called upon to decide were generally thought to violate codes of judicial ethics before that decision.

All these developments, many lawyers and legal scholars warn, threaten the reputation, independence and integrity of the judiciary in the 38 states that elect at least some of their judges. Even the people involved in some of the nastiest campaigns are critical of their own work, saying it is the upshot of an unfortunate but inevitable political arms race.

"This is the year the dam is bursting," said Bert Brandenburg, the acting executive director of Justice at Stake Campaign, a judicial reform organization.

About 40 supreme court seats in 20 states are in play. State high courts decide thousands of cases each year, compared with the 80 or so rulings issued annually by the United States Supreme Court. They are the last word on issues of state law, which governs most injury and contract cases.

Most state high courts have five or seven judges, as opposed to the nine who sit on the federal Supreme Court, and they are often closely divided, meaning that a shift in a single seat can have enormous significance.

The sums of money being spent to capture those seats is growing exponentially.

In 2000, there were three races for seats on the Illinois Supreme Court, and no one thought to buy a television advertisement.

In 2002, there was a single race, and candidates, parties and interest groups spent $320,000 on television ads, according to the Brennan Center for Justice at the New York University School of Law. This year, there is again a single race. The two candidates and their supporters have, as of Oct. 17, spent more than $2 million on television advertising.

In 2002, in every judicial election in the nation combined, "We didn't even reach $1 million until Oct. 19," said Deborah Goldberg, the director of the Democracy Program at the Brennan Center. Through Oct. 17, more than $8 million had been spent this year on television advertising in judicial races, she said.

The dollars are being devoted to far more sophisticated advertising than just imprinting a name in voters' minds.

"The rhetoric is very pitched," said Cindi Canary, the director of the Illinois Campaign for Political Reform, which calls itself a government accountability watchdog group. "You've got some really top-notch political campaign people involved. It has the tone of a competitive legislative race."

One Illinois advertisement opens with a blurry image of children at a playground.

"He used candy to lure the children into the house," an announcer says, over ominous music. "Once inside, the three children were sexually molested. A 4-year-old girl, raped."

"Despite prosecutors' objections," the announcer continues, "Judge Lloyd Karmeier gave him probation."

Judge Karmeier, a trial court judge from Nashville, Ill., is running for the Illinois Supreme Court. He did, in fact, ultimately sentence a mentally retarded man named Bryan Watters to probation. But that was only after an appeals court reversed the six-year sentence he initially imposed.

The appeals court, in a 1992 decision that quoted at length from "Of Mice and Men," suggested that Judge Karmeier's first sentence was too harsh because Mr. Watters had not appreciated what he had done and was unlikely to do it again. The court returned the case to Judge Karmeier, with the suggestion that probation might be appropriate.

Voters in West Virginia saw a surprisingly similar advertisement recently, suggesting either judicial leniency for child molesters or a message that focus groups find compelling.

"He sexually molested multiple West Virginia children," the announcer says. "Liberal Judge Warren McGraw cast the deciding vote to set this reprehensible criminal free."

Here, too, the facts are more complicated than the advertisement suggests.

Justice McGraw, of the West Virginia Supreme Court, did join an unsigned opinion of three justices in February that granted probation to Tony Dean Arbaugh Jr. Mr. Arbaugh, who had himself been sexually abused from the age of 7 by two adult family members and a teacher, at the age of 14 abused a younger half-brother, according to the decision. Mr. Arbaugh received a suspended sentence of 15 to 35 years, served time in a juvenile facility and was released on probation soon after he turned 18.

Prosecutors sought to revoke that probation based on Mr. Arbaugh's use of marijuana and alcohol. The three justices in the majority refused. Justice McGraw cast the deciding vote only in the sense that everyone in the 3-to-2 majority did.

"Considering Mr. Arbaugh's tender age and extreme victimization," they wrote, "we cannot, we will not, surrender any opportunity to salvage his life and to turn him into a productive member of society."

A spokesman for Brent Benjamin, Justice McGraw's opponent, defended the advertisement.

"Everything in Brent Benjamin's campaign ad that dealt with the Arbaugh case was taken directly from the court record," said the spokesman, Steve Cohen.

Justice McGraw said the advertisements attacking him have had a profound political and personal impact.

"I'm just a West Virginia country lawyer running for office," he said. "They say our court set a child molester loose in our schools. It's absolutely untrue. I'm embarrassed to go out in public. They've absolutely destroyed me."

Not all of the advertisements about the Arbaugh case were paid for by the Benjamin campaign. Most came from an organization known as And for the Sake of the Kids. It is devoted solely to defeating Justice McGraw, according to its Web site.

The group has raised about $2.5 million, with $1.7 million of it from Don L. Blankenship, the chief executive officer of Massey Energy, a coal mining company. In a statement, Mr. Blankenship said he had donated "approximately $1 for every West Virginian."

"Without a change in the Supreme Court," he said, "businesses will continue to avoid West Virginia."

Mr. Blankenship's goals are economic, but the advertisements speak to parents' fears. This disconnect between intent and the message is not unusual.

"Everybody now understands that you can't talk too much about tort reform," said Bryan Stevenson, the executive director of Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners, "The big business folks will run a candidate, but the candidate talks about how he wants to execute a bunch of folks or how he's for the Ten Commandments."

Whoever is paying, the advertisements work, said Ms. Goldberg of the Brennan Center.

"There's a very, very strong correlation between the person who has the most campaign spending and the person who wins," she said. "In 2002, in 9 of 11 races with TV advertising, the biggest spenders, including spending by supporters, won."

Advertisements disclosing candidates' positions on legal issues are a reaction to the Supreme Court decision of two years ago. That decision has also led to the widespread use of questionnaires in which interest groups ask judicial candidates to say how they would rule on a given issue should they win.

"Increasingly, churches and business groups are subjecting candidates to a litmus test," Mr. Stevenson said. "When you have a judicial candidate committing to being for the death penalty and against abortion, it really does undermine the fairness and integrity of the system."

One questionnaire, distributed by the North Carolina Family Policy Council, lists 17 questions.

Several of the eight candidates in the race refused to answer it. But some did. Fred Morrison Jr., for instance, said he opposed a constitutional amendment banning gay marriage, spending state money on abortions, euthanasia and driver's licenses for illegal immigrants.

Judge James A. Wynn, one of the candidates who refused to answer, criticized these developments.

"Issues that are likely to come before the court are not issues that judges should address," he said.

Mr. Brandenburg, of Justice at Stake, said the public suffers from partisan judicial elections.

"Legislative and statehouse races are better designed for this rough and tumble," he said. "We don't elect judges to win or lose on certain issues. We elect them to be impartial."