Congress is struggling with gridlock, but Americans should be more worried about the branch of government where political aims are advancing too smoothly – the judicial branch.
Despite their traditional independence, there’s always been a political dimension to the courts. After all, judges are appointed and approved by politicians or elected outright. But lifetime appointments to the federal bench and the nonpartisan basis of state judicial elections traditionally insulated judges from politics.
Now that buffer is growing thin. The ideologically divided U.S. Supreme Court has created a partisan tone with repeated 5-4 decisions on politically sensitive issues. The court’s rulings in Citizens United and McCutcheon v. FEC have allowed corporate political spending and lifted overall limits on contributions.
Last week the Supreme Court agreed to take up a legally dubious challenge to the Affordable Care Act despite the lack of a circuit court split. Plantiffs in the case, King v. Burwell, seek to end federal subsidies for health insurance purchased in states that did to set up their own exchange, including North Carolina. The high court’s decision to hear the case delighted conservative opponents of the ACA, but it also deepened the perception of a Supreme Court that puts politics above precedent and a fair reading of the law.
While political influence is hard to establish in the cloaked environment of the federal courts, it’s becoming as plain as money at the state level, in large part because of the U.S. Supreme Court’s rulings. The Brennan Center for Justice reported last week that outside groups spent $4.9 million on TV ads to influence state supreme court races this year, nearly double the $2.5 million spent in the 2010 midterm election. When candidate and political party spending is included, total TV ad spending rose to $13. 8 million from $12.2 million.
North Carolina is growing familiar with outside groups spending on judicial elections. The trend has been well documented by Facing South, the online magazine of the Institute for Southern Studies in Durham.
The influence of outside spending has been enlarged by the Republican-led legislature’s decision last year to end public financing of judicial elections. Art Pope, the former state budget director who funds conservative causes and groups in North Carolina, helped push for the repeal. His business, the discount store chain Variety Wholesalers, is also a substantial donor to the Washington-based Republican State Leadership Committee or RSLC. The group is funded by corporate donors and backs state-based groups that have shaped judicial races.
One of those races was the 2012 state Supreme Court contest between Sam J. Ervin IV and Paul Newby which set a record for spending. Most of the money, nearly $3 million, came from an outside group. Newby won on the strength of banjo-themed ads that touted his toughness on criminals. He gave Republicans a 4-3 majority on the court that could be crucial in deciding a challenge to the constitutionality of the Republican-drawn redistricting maps.
This year, the RSLC supported a group called Justice for All NC with $900,000 in donations. Justice for All NC sponsored ads in a state Supreme Court primary that portrayed Supreme Court Associate Justice Robin Hudson as sympathetic to child molesters. Hudson survived the attack ad and was reelected Tuesday.
Using an additional $400,000 from the RSLC a week before the election, Justice for All NC ran ads in support of Supreme Court candidate Mike Robinson, a conservative lawyer from Winston-Salem. The surge helped Robinson finish in a near tie with Supreme Court Associate Justice Cheri Beasley, who is supported by Democrats.
Judges shouldn’t have to beg for money from parties that may have business before their court. And they shouldn’t hesitate to give their true reading of the law for fear that it may be the basis of a future attack ad. The Supreme Court and the state legislature should look again at how money is affecting the perception of judicial fairness.