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The nation's court system faces multiple threats posed by escalating campaign spending, a spike in judicial impeachment challenges, and dwindling public resources, a trio of watchdog groups conclude in a report released today.
"As the second decade of the twenty-first century begins, state judiciaries are caught in a vise, squeezed on one hand by interest groups waging an unrelenting war to impose partisan political agendas on the bench and on the other by devastating fiscal pressures," declares the report released by the Brennan Center for Justice at New York University's School of Law, the Justice at Stake Campaign and the National Institute on Money in State Politics.
The trends driving political money in judicial races mirror larger changes in the campaign finance system in the wake of last year's landmark Supreme Court ruling to free up corporate and union money for political spending. A small number of "super spenders" are dominating judicial races in many states, and most do not disclose their funding sources, states the report, titled "The New Politics of Judicial Elections 2009-10."
Outside expenditures by noncandidate and nonparty players also escalated in the 2010 judicial races, totaling nearly $11.5 million of the $38 million spent, according to the report. As in federal political campaigns, moreover, business and conservative outside spenders in judicial elections are vastly outspending their liberal counterparts.
Among other trends, the report noted that spending on retention elections, in which voters do not choose between candidates but vote up or down whether or not to retain an individual judge, has sharply increased. Such retention elections accounted for 12 percent of all spending in the 2010 cycle, compared with just 1 percent for the entire previous decade.
"The most alarming trend is that spending in one-candidate, retention elections was dramatically higher than it ever was before," said Justice at Stake editor Charles Hall. Also on the rise are legislative challenges to public financing of judicial elections and to the merit selection of judges, along with threats to impeach judges who issue unpopular rulings. At the same time, state budget cuts are forcing courts to do more with less, said the report's authors.
"Just as courts are being called on to do more and more, they are being given less and less to do this role," said Adam Skaggs, senior counsel at the Brennan Center's Democracy Program. "So it's really an incredibly challenging time for courts. And 2012 could be a very difficult year."
The report's findings contrast sharply with conservative warnings that the nation's judiciary represents an activist liberal force that should be constrained. Several Republican presidential candidates, including Texas Gov. Rick Perry, have endorsed curtailing judicial power through measures such as term limits. The report's release coincides with the 12th Annual Legal Reform Summit hosted today by the U.S. Chamber of Commerce in Washington, D.C.
Topics include a panel on "The Very Long Arm of the Law" to address federal regulatory and enforcement practices and on what the 2012 political outlook means for the business community.