Voters Demand a Fair and Impartial Judiciary: NOW WHAT?!

The other candidate is lazy, soft on crime; a politician.  These are the accusations blaring over Alabama airwaves, but you would be mistaken to think that 2012 White House hopefuls have begun campaigning.  No, these are the television spots for Alabama Supreme Court candidates.  These messages and others like them are often funded by large interest groups like the Alabama Democratic Party, and linked with the plaintiffs’ bar, the Business Council of Alabama, and groups like the U.S. Chamber of Commerce and the National Association of Manufacturers.  According to the Brennan Center for Justice at New York University School of Law, Alabama’s judicial elections are the most expensive in the nation, with Supreme Court candidates having raised $40.9 million from 2000-2009.

A recent poll by Justice at Stake, a nonpartisan reform movement to “keep state and federal courts fair and impartial,” reveals that voters nation-wide view the influence of such large sums in state Supreme Court elections to be troublesome indeed. Approximately 87 percent of adults aged 18 or older indicated “‘all campaign expenditures to elect judges’ should be publicly disclosed, so that voters can know who is seeking to elect each candidate.”  Think this issue divides along party lines?  Wrong again.  Justice at Stake cites Democratic heavyweights like Michigan Chief Justice Marilyn Kelly and Wisconsin Justice Ann Walsh Bradley, and Republican legal giants including former U.S. Solicitor General Ted Olson and former Supreme Court Justice Sandra Day O’Connor, as those sounding the alarm on money in judicial elections.  Moreover, the same Justice at Stakes poll revealed that 82 percent of Republicans and 79 percent of Democrats indicated that a sitting judge “should not hear cases involving a campaign supporter who spent $10,000 toward his or her election.” Alabama newspapers have featured editorials over the past several months with titles like “Justice is not blind, but Alabama seems pretty dumb,” and “Our judicial mess.”

In spite of the national polls and strong pronouncements against the influence of money in judicial elections, little seems to be happening in Alabama on a state or grassroots level.

State political party leaders say they’re committed to reform.  Of the party’s stance on reducing the influence of money in judicial elections, Alabama Republican Party Communications Director Philip Bryan says that the state GOP remains committed to “open and fair elections, financed through ways the public can see.”  And the Democrats are just as responsible for the current system, Bryan points out:  “[The] Alabama Democratic Party has spent more on state Supreme Court races than anyone else in the country, and seeing that they only have one seat, maybe they should spend their money elsewhere.”  Indeed, the Alabama Democratic Party made $5,460,117 in candidate contributions from 2000-2009, according to a recent report by Justice at Stake.  Coming in second for top spenders, the Republican-affiliated Business Council of Alabama contributed $4,633,534 during the same time period.  Bryan also says the Dems have had a hand in preventing reforms.  “The Democratic majority in the legislature has blocked our efforts to clean up campaign finance reform and promote transparency,” Bryan says.

Across the aisle, Executive Director of the Alabama Democratic Party Jim Spearman said that Alabama state Democrats have worked hard to pass bills to reform the influence of money in Alabama judicial elections.  According to Spearman, the major roadblock is that the “[state] Republican Party does not want to see change.”  Spearman expressed the state Democratic party’s emphasis on the need for third-party disclosure legislation that would proscribe special interests from bankrolling a candidate indirectly through a third-party:  “One need only look to Exxon Mobil’s efforts that funnel money to buy seats on the Court.”  Ultimately, Spearman commented that despite desires to reform Alabama’s judicial elections system, “no grassroots movement exists.”

Charles Hall, Director of Communications for Justice at Stake, agrees, commenting, “it’s fair to say there’s no grassroots movement [in Alabama].”  When asked about the void despite broad public support for such reforms, Hall says “reformers always experience a disadvantage—going out and getting people to feel that their issue is more important than getting money for a road to be built or a new classroom.”

In addition to a lack of resources, Hall says the public’s consciousness is rarely raised about the effects of money in judicial elections.  “People on principle think these [reform] actions are good things to do, but they are not the type of discussions that happen around dinner tables,” Hall observes.  “It takes a rare seismic event, and the recent Citizens United v. Federal Election Commission case is the closest we’ve come to that.  Citizens United has triggered as much genuine ground level reaction to the issue as I have ever seen.”

Yet, heightened awareness as of yet has not translated to a push for change.  While polls indicate that the people have spoken, and state parties say cleaning up judicial campaigns is an idea they can both embrace, financial support to Alabama judicial candidates of both parties continues its upward trend.  After all the dialogue, one can hear a pin drop in Alabama.

Gregory Proseus is a second-year law student at William & Mary Law School.