Login | November 24, 2017

Attack on courts, judges grow as money pile gets higher and higher

DANIEL A. COTTER
Law Bulletin columnist

Published: November 10, 2017

In 2009, the Iowa Supreme Court unanimously decided Varnum v. Brien, finding that the state’s limitation of marriage to opposite-sex couples was a violation of the equal protection clause of the Iowa Constitution. In 2010, the three justices who were up for retention that were part of the unanimous court decision were defeated at the polls.

Outside pressures on the nation’s judiciary have increased of late.

In recent weeks, a conservative nonprofit known as The Judicial Crisis Network received a single $17.9 million anonymous donation to further fund its advertising aimed at influencing judicial appointments; Attorney General Jeff Sessions attacked district court judges; and North Carolina became the first state in almost 100 years to have partisan court elections.

This column focuses on what appears to be an alarming erosion of the independence of the third branch of government.

Federal judiciary

Unlike any other office at the federal level, Article III judgeships are lifetime appointments, the U.S. Constitution providing:

“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.…” Article III, Section 1.

The Framers intended for the judiciary to be independent and to ensure such independence by limiting the circumstances under which judges could be removed or replaced.

Alexander Hamilton, in a letter dated June 14, 1788, and published in the Independent Journal (“The Federalist No. 78”), stated: “And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.”

Recent events suggest that the impartiality sought by Hamilton is in jeopardy.

As a nation, we should be concerned that anonymous money has permeated even the Supreme Court of the United States. The recent disclosure that Judicial Crisis Network received such a large donation, which represented 96.6 percent of network’s revenue and almost three times more than any year’s revenue in the network’s history, should be raising alarm bells regarding the future independence of our federal bench, one of the cornerstones of the separation of powers established by of our Founding Fathers.

According to reports, from that anonymous contribution, the network spent $7 million to block Judge Merrick B. Garland’s Supreme Court nomination and spent $10 million on ads earlier this year to secure Supreme Court Justice Neil Gorsuch’s confirmation.

A paraphrasing of the words of justice John Paul Stevens, in his dissent in Bush v. Gore, seems to address the situation:

Although we may never know with complete certainty the identity of the winner of [the impact of dark money on our judiciary], the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.

At the same time the news was disclosed about dark money in the Supreme Court nomination process, Sessions gave a speech at the conservative Heritage Foundation’s biannual Legal Strategy Forum, accusing federal judges of having “failed to respect” the other branches.

“You don’t start favoring one side over another,” he asserted. “Those who ignore this duty and who follow their own policy views erode the rule of law.

In fairness to Sessions, he is not the first (and will not be the last) executive branch member to attack the judiciary for alleged biases and acting as “super-legislators.” Some Supreme Court justices (e.g. Antonin Scalia, Felix Frankfurter, among others) have argued that their fellow jurists are effectively legislators wearing black robes.

However, if we are to have any faith in the independence of the judiciary, we must again consider the words of our Founding Fathers on the subject. Turning to The Federalist No. 78 again, Hamilton discussed the judicial branch and its power (or lack thereof):

“It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.

“It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’

“And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”

If courts are to remain independent and not political at the federal level, they cannot be attacked at every turn when a decision rules against the other branches.

North Carolina and money in state judicial elections

According to the Brennan Center for Justice, the last election cycle (2015-16) saw a new record in outside groups’ advertising spend, topping $19 million in various state judicial races. That record was 44 percent higher than the previous record set in the 2011-12 cycle. The Brennan Center stated in its report “Spending by Outside Groups in Judicial Races Hits Record High, Secret Money Dominates”:

“[T]he state judicial selection process has become more overtly partisan and politicized, threatening the essential role courts play in ensuring fair and impartial justice, accountability and a democracy free of undue influence.…

“Ten states saw television spending in excess of $1 million, including North Carolina, where a high-profile election rife with tensions over racial gerrymandering resulted in the defeat of a Republican incumbent and the prospect of a Democratic majority on the high court, only to spill over into an apparent attempt by the Republican-dominated legislature to pack the court with new justices.…

“A large portion of this outside spending was so-called ‘dark’ or ‘gray’ money, providing little information as to the identities of the underlying donors. Of the 20 groups that spent on television in 2015-16, only three were fully transparent. The remaining 17 include groups that do not disclose their donors, as well as PACs that list other groups as among their contributors. This makes it difficult (and sometimes impossible) to discern who is trying to influence judicial races and masks potential conflicts of interest in cases involving major spenders.

“What we’re seeing is the legacy of Citizens United in action,” said Alicia Bannon, senior counsel at the Brennan Center’s Democracy Program. “This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all.”

The report is available at brennancenter.org.

Again, the theme on the state level is the erosion of the fairness and impartiality of our courts. In the contested North Carolina Supreme Court race referred to in the Brennan Center news release, $2.8 million was spent on ads. The Republican-controlled legislature subsequently enacted a number of provisions that appear to be unprecedented and designed to change the makeup of the North Carolina courts, including a new requirement that judges must identify their party affiliations on ballots, reducing the size of the state Court of Appeals and drawing boundaries that will result in many African-Americans on the bench facing runoffs against other incumbents.

Conclusion

The infusion of dark money and other activities at the state and federal level raise concerns about the continued independence and impartiality of the judiciary.

Something should be done to address the staggering amount of dark money pouring into judicial nominations at all levels.

Failing to address the issue may well result in the disappearance of an independent judiciary, a cornerstone of our structure of government.

Daniel A. Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@butlerrubin.com.


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