Mudslinging the new normal in judicial elections?

Introduction

Out-of-state political organizations spent millions on mudslinging television ads in state supreme court elections in 2012, according to a new report, marking a new and worrisome trend, say some legal experts.

The report found that total spending in states where high court judges are elected reached $56 million in the 2012 election cycle with more than $24 million of it — 43 percent — coming from non-candidate organizations, many from out of state.

The report was released by the Brennan Center for Justice and Justice at Stake, groups that are highly critical of judicial elections. The conclusions were based on data from the National Institute on Money in State Politics and the Campaign Media Analysis Group.

A record $33.7 million was spent on television ads, much of which came from outside groups — including super PACs and nonprofits — attacking judicial candidates on the airwaves.

In Michigan, the Judicial Crisis Network spent between $600,000 and $1 million on a television ad equating incumbent Democratic justice Bridget McCormack’s previous legal work defending a detainee at Guantanamo Bay to volunteering to “help free a terrorist.”

The Judicial Crisis Network is a Washington, D.C.-based nonprofit and is not required to disclose its donors, as the Center for Public Integrity has previously reported.

“TV is where the judicial elections are being bought,” said Alicia Bannon, counsel to the Brennan Center and an author of the study. “Mudslinging has really become the new normal.”

Former Iowa Chief Justice Marsha Ternus — who was ousted from her seat on the state’s high court in 2010 after an onslaught of attack ads criticizing her 2009 vote to legalize gay marriage — said politicized judicial elections and the recent influx of money into them threatens the integrity of state courts.

Unlimited money in judicial races could transform state courts into “mini-legislatures” composed of judges who will vote according to partisan ideology, Ternus said.

“I don’t see how that’s the rule of law,” she added.

The surge in spending jeopardizes the impartiality of elected judges whose campaigns are bolstered by special interest contributions, the groups say. Many states’ ethics rules require judges to disqualify themselves from cases where a campaign donor is a party, however Ternus raised concerns about frequent disqualifications.

“Recusal rules are good, but the system that requires recusals results in a court that is handicapped because not everyone can participate,” she said.