WASHINGTON, D.C.-The Supreme Court battle will be extremely expensive, perhaps $50 to $100 million. One group, Progress for America, spent $45 million on Bush’s last presidential campaign. It already has committed $18 million for the Supreme Court fight. Much of the money will be used to influence moderate Republican senators and those senators the right wing deems to be wishy-washy when it comes to backing a conservative. In many respects the campaign for a Supreme Court justice is a sort of election, with the members of the Senate being the electors who are influenced by their constituencies. One big difference is that most of the money used to win a seat on the Supreme Court does not have to be reported.
In fact, while many people may not know it, judges are often elected like any other politician. Thirty-nine states elect judges. In Pennsylvania it costs $1 million to win a judgeship. In Texas the price tag can top $2 million. In a November 1999 Frontline report, Bill Moyers delivered a devastating portrait of just how the U.S. buys its judges.
“People don’t go pour money into campaigns because they want fair and impartial treatment,” said Bob Gammage, a former Texas Supreme Court justice. “They pump money into campaigns because they want things to go their way.”
Helen Lavelle, a media consultant who helps plot campaigns for judgeships, told Moyers, “We’re in a system where elections can be bought.”
Lawyers are the main group financing judgeship campaigns. Sheila Kaplan and Zoe Davidson report in The Nation that the tobacco industry, casinos, insurance companies, doctors, and the religious right are others that pump cash into electing judges.
Often lawyers who practice before a judge are at the heart of the action, pushing a candidate in the interests of a client, usually an industry group or individual company. Frontline captured one of these attorneys fawning at a fundraiser: “And I look forward to that first time that I’m standing before you, and I have to say, ‘Your Honor.’ I really am! That’s going to be the greatest thrill!”
Lavelle put it bluntly: “Other people who are in my profession will be ready to kill me. I don’t care. I don’t. I think that the amount of money flowing around out there to get people judicial seats is obscene. It’s unfair, and people are ending up with a chance to be on a bench who have no business being there. I really believe that we are in a system where elections can be bought. It’s sad.”
On the same program, two Supreme Court justices talked frankly about money influencing the choice of judges. Some would say their comments would apply to the Supreme Court race.
“The campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly-burly, rough- and-tumble,” said Anthony Kennedy, the justice the right loves to hate. “This is a difficult world for a jurist, a scholarly, detached neutral person, to operate within. Now when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we’re concerned that there will be either the perception or the reality that judicial independence is undermined.”
Stephen Breyer, a somewhat liberal member of the Court, added, “And independence doesn’t mean you decide the way you want. Independence means you decide according to the law and the facts. Law and the facts do not include deciding according to campaign contributions. And if that’s what people think, that threatens the institution of the judiciary. To threaten the institution is to threaten fair administration of justice and protection of liberty.”
Kennedy elaborated: “This is serious because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral.” He added, “To begin with, we have to ask, is it fair for the electorate to try to shape the philosophy at all, without campaign contributions? Is this a proper function? I am concerned about that. I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality, and commitment to other more constant values as to which there is general consensus.”