Friday, August 20, 2010

Will Justice for Sale Undermine the Rule of Law?

Justice Sandra Day O'Connor warns this may very well be the case, as special interest pressure on judges continues to increase.

“This crisis of confidence in the judiciary is real and growing,” Justice O’Connor warned. “Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” -- Justice Sandra Day O'Connor wrote in the forward of the new report on judicial elections.
The new report The New Politics of Judicial Elections, 2000-2009: Decade of Change reveals that special-interest money in state court races from 2000-2009 exploded.  For over a decade, partisans and special interests have been growing more organized in their efforts to use elections to tilt the scales of justice in their direction as millions of dollars, raised by candidates from parties who may appear before them, millions more poured in by interest groups, nasty and misleading ads, and pressure on judges to signal courtroom rulings on the campaign trail continue to escalate.

Dan Eggen from the Washington Post said, “that much of the increase has been fueled by outside groups funding attack ads of the kind commonly found in partisan races for the White House, Congress, or governors’ mansions. Industry groups, trial lawyers and others are increasingly targeting specific judges for removal over rulings that hurt their financial bottom line.”

NPR's Report: Too Much Money Going To State Court Races said the study "documents an arms race that’s escalating among business groups, trial lawyers and unions. They’re all competing to raise money to put their favorite candidates on the bench.”

A few personal examples of the grave and growing challenges to the impartiality of our nation’s courts (from the comments section of On Point's radio show entitled: Electing Judges: Justice for Sale?):
I tried to find a lawyer to represent me in what could have been a suit against a particular company which is a member of a particular business “type” in my state. I called at least seven lawyers, and they all said, “no, I won’t take the case because I get a lot of business from that company, and I don’t want to sue them on your behalf, thus risking my law firm’s ability to continue getting business from the company you want to take action against in the future. They send a lot of business my way.”

I asked if I had a potentially “good” case. They said, “yes.” I asked if I were not entitled to representation in court. They said, “you are, but I don’t have to give it to you.” So many (seven )law firms said this same thing, that I think it is parallel to this topic today: big money in the courts. -- Posted by A.J., on August 17th, 2010 at 10:18 AM

Justice Taylor, a guest of the show, received, over the course of several elections, considerable (read millions) donations from Business Groups, Insurance Companies, and physician groups.

Now, why would Blue Cross Blue Shield of Michigan give to a judge’s campaign? Shortly after the 2000 election, in which insurance gave lots, Justice Taylor penned a decision forcing a higher standard for Plaintiffs in order to pursue medical malpractice complaints. In the Scarsella case, which has its own behind-the-scenes procedural anomalies, Taylor institutionalized (read “interpreted into precedent”) a procedural set of steps only sketched out by the legislature. In short, Taylor repaid the insurance industry by limiting the number of cases of med mal–that is, by setting the entrance fee to the court just a little higher.

This is one small example of how campaign monies are repaid.  -- Posted by Bill Jackson, on August 18th, 2010 at 10:04 AM
American democracy is not where majority rules, rather where it's safe to be in the minority. The courts are supposed to protect the rights of the people, even if that means going against popular opinion, however the new politics of judicial elections furthers corporate or monied interests at the expense of individual justice.
"In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate(s) corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests." Bellotti , 435 U. S., at 817, n. 13 (White, J., dissenting).
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics." -- Former Justice Stevens' dissent in Citizens United vs FCC

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