Chapter 1 Excerpt for Free to Judge

1

THE MODERN ERA OF BIG MONEY JUDICIAL ELECTIONS

“WE COULD LOSE OUR JOBS over what we just did,” Chief Justice Marsha Ternus heard a colleague whisper. She and the other justices of the Iowa Supreme Court had just unanimously upheld the right of same-sex couples to marry under their state constitution. It had been no secret that the case, Varnum v. Brien, was political dynamite. “We had demonstrations outside the building during oral argument. Groups were coming in from outside the state raising a lot of objections to same-sex marriage,” Chief Justice Ternus remembers. “So, we had an inkling that there would be people outside the state, and in the state, interested in retention elections depending on how we rule.” The following year, opposed by an unprecedented million-dollar opposition campaign financed by out-of-state groups, Chief Justice Ternus and two of her fellow justices became the first appellate judges ever in state history to lose their re-election bids. Big-money judicial elections had arrived in the state of Iowa.

Marsha Ternus’s defeat sharply marked this new era. Before 2010, Iowa Supreme Court justices had faced retention elections to keep their jobs fifty times, including Chief Justice Ternus twice before. Every time, the justice running for retention had won back their job and received an average of more than 80 percent voter approval, never less than 72 percent.¹ As Justice Ternus remembers it, thoughts about running for re-election in Iowa never came up. “I don’t even recall thinking about it at all,” she says. In fact, the day after one of her earlier retention elections, someone at work asked her whether she had won. Only then, she says, did she even remember that she was on the ballot. “That’s how much of a non-issue [re-elections] were for all judges.” Only two trial judges had ever lost their retention bids under the Iowa judicial system, and in those instances, the judges lost based on perceived lack of judicial temperament or competence, not ideology. As Justice Ternus explains, “That’s what retention elections are for.”

But by 2010, judicial elections had already begun to change nationwide. “We saw elections being politicized in other states,” Ternus recalls. “There was certainly some feeling by people thinking about how to push their agenda, and the courts were an untapped avenue for that.” Campaigns, particularly for state supreme court, were becoming more intense, expensive, and ideological than ever. Judicial races had once been relatively quiet affairs with high re-election rates, but since the 1980s they have become more politicized, partisan, and expensive—basically more and more like elections for other elected offices. Indeed, 2010 was a watershed year for judicial elections nationwide, with record spending greater than the total for the entire previous decade.² “Well, I just knew that in other states a lot of money had been spent on trying to get rid of particular judges. So, the fact that it happened here in Iowa because of the Varnum decision wasn’t a big shock.”

After Varnum, Chief Justice Ternus and her colleagues faced a political campaign against them unprecedented in state history. Interest groups, mostly from out of state, spent an Iowa record of nearly $1 million on campaign spending and advertising against the trio, who themselves didn’t engage in any fundraising or campaigning in their own defense. “Under our judicial ethics, we could have formed a campaign committee and done fundraising and campaigned. And we chose not to do that,” Marsha Ternus explains now. “We weren’t comfortable in that role. And we felt that if we did that, we were only confirming this characterization of the people who opposed our decision that we were just making decisions based on our personal preference and our ideology. That it wasn’t based in the rule of law.” So, Marsha Ternus and her colleagues faced the voters as judges, not politicians. “And so we just decided, let the chips fall where they may. We are not going to campaign, and we are not going to fundraise. So we did lose.”

The irony was that Varnum, the same-sex marriage case, was a simple, straightforward decision in their view. As she remembers it, “The decision itself was hard in the sense we had a banker’s box of briefing to read. But the legal analysis, the standard legal analysis, clearly took you to the decision that there was an equal protection violation. That wasn’t hard. And that’s why it was unanimous.” Five Democrats and two Republicans agreed in the 7–0 decision, with Republican Mark Cady authoring the opinion. Their decision in Varnum was vindicated by the U.S. Supreme Court’s decision only three years later in a similar case, United States v. Windsor,³ and then again definitively confirmed in a 2015 decision, Obergefell v. Hodges.⁴ Looking back on her election defeat today, Marsha Ternus explains that “there was no reason to come after us, any of us. I was actually a Republican appointee, and the justice who wrote the decision was a Republican appointee. And I think we were kind of regarded as the more conservative people on the court. So, I wouldn’t have thought any of these groups would come to Iowa and campaign against us.”

However, Varnum v. Brien was about same-sex marriage. The Iowa Supreme Court had decided that an Iowa law banning the marriage of same-sex couples violated equal protection under the Iowa Constitution. It was a hot-button issue at the time that drew the ire, and campaign financing, of wealthy conservative interests across the country. The National Organization for Marriage spent almost a half million dollars against the justices’ retention, while AFA Action Inc. and the Campaign for Working Families, all out-of-state groups, added six-figure amounts to the opposition campaign.⁵ Justice Ternus recalls that “the campaign against us was so filled with fear and hate. It was really sad. . . . People don’t seem to have any conscience about being accurate or fair.” The campaign against these justices who declined to campaign and fundraise as a matter of principle motivated a group of former Iowa governors, lawyers, and judges to campaign on their behalf. This group, named Fair Courts for Us, argued their defense of Marsha Ternus and her colleagues was necessary for Iowans “to know courts will be fair and impartial and decisions won’t be based on fear and popularity.”⁶

The Varnum justices would later be awarded the John F. Kennedy Profile in Courage Award recognizing their judicial independence and integrity. As Caroline Kennedy put it while bestowing the award, “When Justices Baker, Streit, and Ternus joined a unanimous decision to overturn a law denying same-sex couples the privileges of marriage, they sacrificed their own futures on the Court to honor Iowa’s constitution and the rights of all its citizens.” Nonetheless, the leaders of the opposition crowed after the 2010 election that “[t]he people of Iowa stood up in record numbers and sent a message . . . that it is ‘We the people,’ not ‘We the courts.’”⁷ And it was exactly this demonstrated pressure to decide as public opinion would demand, rather than how the rule of law indicates, that worries many about today’s judicial elections and campaign finance. Erwin Chemerinsky, dean of UC Berkeley Law School and eminent constitutional law scholar, lamented at the time that “[w]hat is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office. Something like this really does chill other judges.”⁸

New-style judicial elections, with organized, well-financed pressure campaigns like the one that defeated Marsha Ternus, change the character of the job and those who seek it. Although there “was nothing political about retention prior to the 2010 election [in Iowa],” judicial elections had changed by and since 2010. “I would never have been a judge if I had to campaign to get it,” Marsha Ternus observes in retrospect. The new, politicized system “screen[s] out a certain group of people. And I think that system pressures people who would prefer not to have to prejudge issues. . . . It’s hard to remain principled.”

Judicial elections have changed. So have judging, judges, and the law as a result. This book is about this transformation of judicial elections and the influx of big money and organization to influence judicial decisionmaking. This book is about how and why that happens. And what can be done about it.

BIG MONEY JUDICIAL ELECTIONS AND CAMPAIGN FINANCE

Marsha Ternus won’t be the last judge to feel the accelerating pressures of campaign finance and the next election. Nine out of ten state judges in the United States must win election to earn or retain their judgeships. Running for judge requires money. As Justice Antonin Scalia once wrote, “One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them.”⁹

Of course, the problem is that money buys things and creates dependence. For people with money to spend on elections, this is a big benefit of their campaign spending. They can invest campaign finance money to elect and re-elect lawmakers who do as they, the investors, prefer in government. As a consequence, state judges may need to behave like other elected politicians who must win re-election to keep their jobs. As a California Supreme Court justice once put it, the next election is like a crocodile in your bathtub when you go into the bathroom: “You know it’s there, and you try not to think about it, but it’s hard to think about much else while you’re shaving.”¹⁰ We can’t be assured that judges will handle this pressure as well as Marsha Ternus did and be willing to lose their jobs to decide cases as they believe the law demands. In a system like ours that elects state judges, it means campaign donors generally support and can elect judges who will do what the donors want.

We are reaching a crisis point in judicial elections, if we’re not already there. The American Bar Association formally opposes the use of judicial elections because of what it sees as the “corrosive effect of money on judicial election campaigns” and the associated “attack advertising” funded by increasing fundraising.¹¹ Campaign spending on state supreme court elections in 2015–16 was the highest to date.¹² The 2015–16 campaign cycle had twenty-seven state supreme court races in which at least $1 million was spent, the most ever in American history, and today, a third of state supreme court justices were elected in campaigns where more than $1 million was spent. State supreme court races are also featuring record amounts of television spending and outside spending by interest groups. A shocking 82 percent of spending by interest groups in judicial races is subject to ineffective disclosure, where the individual source of funding is not publicly known. The result is that elections arguably become, in one scholar’s words, “floating auctions” where campaign spenders vie for influence over judges and their decisions.¹³

Justice Sandra Day O’Connor, who made it her cause after retirement from the U.S. Supreme Court to champion judicial election reform, warns that “there are many who think of judges as politicians in robes” and agrees that “[i]n many states, that’s what they are.”¹⁴ Most voters, more than three-quarters of the public, already conclude that campaign contributions have influence over elected judges’ decisions. Worse, judges themselves generally agree that campaign money affects their decisions. Almost half agree that campaign contributions have at least “a little influence” on their decisions, and more than half of judges actually believe that they “should be prohibited from presiding over and ruling cases when one of the sides has given money to their campaign.” A staggering 80 percent of judges believe that interest groups are using campaign contributions to try to shape legal decisions in their favor.

We began studying judicial elections more than a dozen years ago by looking at whether judges were affected by the electoral incentives to win and then keep their jobs. Judicial elections are an almost uniquely American practice. Almost no other country entrusts judicial selection to popular elections.¹⁵ Even in the United States, only state judges are selected and retained through elections. Most people focus on federal judges and the system of presidential appointment and lifetime tenure, but seventeen out of eighteen judges in the United States are state judges—94 percent of all judges—almost all of whom face elections to win or keep their jobs.¹⁶ And state judges decide most of the legal cases in our country.

Although federal courts hog public and media attention, state courts make most of the law that affects you on a daily basis. State courts handle more than 90 percent of judicial business in America.¹⁷ While the U.S. Supreme Court decides fewer than one hundred cases per year, more than ninety million cases are brought in state trial courts per year, or roughly one case for every three people in the country.¹⁸ State courts decide torts, property, and contracts cases. They decide family law, criminal law, and state constitutional law.

Arguably, state courts are becoming more important than ever as an increasingly conservative U.S. Supreme Court abdicates a federal constitutional role in critical policymaking areas like redistricting and abortion. State courts alone will decide whether partisan gerrymandering is permissible and what reproductive rights women have under state constitutions, among many other decisions—enormously important constitutional questions that federal courts once dominated. The state judges presiding over and deciding these cases are overwhelmingly likely to have won an election to get their job, or else they will need to win an election to keep it.

Judicial campaigns require campaign money, as Justice Scalia famously observed. We are law professors with statistical training and mounds of data on these judicial elections, campaign finance, and the judicial decisions that follow. We have spent the past decade poring over the data and writing about the subject. When we investigate the influence of campaign fundraising on judicial decisionmaking, we find campaign money profoundly affects how judges do their jobs and shape state law. Intuitively, some critics of the legal system already felt they knew that campaign finance affects elected judges. Given the amount of money increasing in judicial elections, that’s a fair guess. But others pooh-pooh concerns about money in politics and think that it doesn’t make much difference with such experienced, duty-bound lawyers as our judges. We go beyond mere intuition and anecdote in our work and here in the book. Intuition and anecdote are important clues to what’s going on, but not always reliably so. Quantitative analysis of objective data often tells us more.

American society is increasingly turning toward data-driven study of everything from professional baseball to medical care and government administration. Twenty years ago, Michael Lewis wrote the book Moneyball about a revolution in the way that major-league baseball thought about its business.¹⁹ Major-league baseball, like most industries, was driven by longstanding assumptions about how to find baseball talent that often were as much untested myth as reality. Major-league management started to turn to quantitative analytics to pierce the mythology and get to some objective truth about how to find and identify baseball players by using statistics. In the following years, there have been similar Moneyball trends for management virtually everywhere you look, from pro basketball and pro football to health care,²⁰ law schools,²¹ and the federal government.²² We now live in a Moneyball era for everything. Statistics sometimes reveal or confirm empirical reality that is difficult to pin down just with qualitative observation.

This book presents the best empirical evidence to date that campaign money biases judicial decisionmaking. Our earlier work established a robust relationship between judicial decisions by elected judges and the campaign contributions received from a wide range of donors: business groups, political parties, left- and right-leaning interest groups, among others. Elected judges demonstrably lean toward the interests and preferences of their campaign contributors across all types of cases.

This predictive relationship between campaign contributions and how judges decide cases is troubling enough. We will detail how campaign contributors appear to get what they want for their money. Judicial elections allow them to influence how judges ultimately decide cases that they care about and that affect their interests. Ideally, our judicial system should decide cases independent of the policy preferences and interests of wealthy donors. But election systems where campaign finance helps decide who wins judgeships almost inevitably allows money to matter more than most of us would like.

Notes

1. Allan W. Vestal, “Vindication: Varnum v. Brien at Ten Years,” Drake Law Review 67 (2019): 463, 470.

2. See A.G. Sulzberger, “Ouster of Iowa Judges Sens Signal to Bench,” The New York Times, November 3, 2010.

3. 570 U.S. 744 (2013).

4. 576 U.S. 644 (2015).

5. See Mike Glover, “Gay Marriage Foes Back Push to Oust Iowa Justices,” Associated Press, October 25, 2010.

6. “Iowa Gay Marriages Foes Emboldened by Judges’ Removal,” The Gazette, November 3, 2010, 8:57 a.m., https://www.thegazette.com/campaigns-elections/iowa-gay-marriage-foes-e… (quoting Dan Moore, co-chairman of Fair Courts for Us).

7. Grant Schulte, “Iowans Dismiss Three Justices,” The Des Moines Register, November 3, 2010 (quoting Bob Vander Plaats).

8. Sulzberger, “Ouster of Iowa Judges” (quoting Chemerinsky, then-dean of UC Irvine Law School).

9. Williams-Yulee v. Fla. Bar, 575 U.S. 433, 472 (2015) (Scalia, J., dissenting).

10. Gerald F. Uelmen, “Crocodile in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization,” Notre Dame Law Review 72 (1997): 1133.

11. American Bar Association (ABA), “Justice in Jeopardy: Report of the American Bar Association Commission on the 21st Century Judiciary” (2003): 1–2.

12. Total campaign spending in 2015–16 was the highest spending unadjusted for inflation, though second highest when adjusted for inflation to 2003–2004.

13. Brady Dennis, “Super PACs, Donors Turn Sights on Judicial Branch,” The Washington Post, March 29, 2012 (quoting Roy Schotland).

14. Annemarie Mannion, “Retired Justice Warns Against ‘Politicians in Robes,’” Chicago Tribune, May 30, 2013 (quoting Justice Sandra Day O’Connor).

15. Debra Cassens Weiss, “Most Countries Don’t Hold Judicial Elections,” ABA Journal, May 27, 2008, 1:31 p.m. CT, https://www.abajournal.com/news/article/most_countries_dont_hold_judici….

16. Institute for the Advancement of the American Legal System, “Quality Judges Initiative FAQs: Judges in the United States,” https://iaals.du.edu/sites/default/files/documents/publications/judge_f….

17. Tracey E. George and Albert H. Yoon, “The Gavel Gap: Who Sits in Judgment on State Courts?” (2017): 3, https://www.acslaw.org/wp-content/uploads/2018/02/gavel-gap-report.pdf.

18. Id.

19. Michael Lewis, Moneyball: The Art of Winning an Unfair Game (New York: W. W. Norton & Co., 2003).

20. See, e.g., Harry Glorikian and Malorye Allison Branca, MoneyBall Medicine: Thriving in the New Data-Driven Healthcare Market (New York: Routledge, 2017).

21. See, e.g., Paul Caron and Rafael Gely, “What Law Schools Can Learn from Billy Beane and the Oakland Athletics,” Texas Law Review 82 (2004): 1483; Jeremy Potter, “Legal Education and Moneyball: The Art of Winning the Assessment Game,” Connecticut Public Interest Law Journal 11 (2012): 327.

22. See, e.g., Jim Nussle and Peter Orszag, Moneyball for Government, 2nd ed. (New York: Disruption Books, 2015).

23. Joan Biskupic, “Supreme Court Case with the Feel of a Best Seller,” USA Today, February 17, 2009.