More political money, secrecy threaten integrity of courts
Published November 19, 2014
by Doug Clark, Greensboro News-Record, November 19, 2014.
The TV ad in the N.C. Supreme Court campaign was a pleasant surprise.
When Justice For All NC, an independent expenditure political organization, bought $400,000 of broadcast time in the days before the election, many feared the worst. The same group aired ads before the primary in May calling Justice Robin Hudson soft on child molesters, based on a distorted interpretation of her opinion in a Supreme Court case.
There was no repeat of that in late October. Instead, the new ad featured a country bumpkin guitar player singing “I Like Mike” on behalf of Mike Robinson, a Winston-Salem lawyer running for a court seat against Justice Cheri Beasley.
The catchy tune likely helped Robinson gain thousands of votes. He lost, pending a recount, but by a much closer margin than the first-time candidate might have otherwise.
Hudson won her race easily, probably in part because of her experience in the primary. So many other judges, lawyers and newspapers defended her position in the case in question that she might have become untouchable.
It turned out there were no negative ads during the general election campaign for four seats on the Supreme Court. Justice For All NC might have learned its lesson, this time.
The elections produced good results. Led by Chief Justice Mark D. Martin, the court will have a moderate-conservative majority but a couple of members who will often take a contrary position, which isn’t a bad thing; four men and three women; and one African American — Beasley, who appears to have narrowly held on to her seat.
Not that all is necessarily well in the branch of government we count on to tune out political influence. This campaign was the first in more than a decade conducted without public financing. The elimination of this system opened the door to millions of dollars as candidates scrambled to fund their campaigns.
Most donors are lawyers who potentially bring cases before the court. But, individual attorneys contribute a few thousand dollars at most. The big money pours into the independent expenditure organizations. The top player has been Justice For All NC, which receives most of its funding from the Republican State Leadership Committee in Washington, D.C. In turn, the RSLC receives funding — in the millions of dollars — from corporate America. Donors have included Duke Energy, Blue Cross and Blue Shield and Koch Industries.
When this money pays for TV ads that attack state Supreme Court justices for decisions in criminal cases, the effect is to cause courts to rule more often against criminal defendants, a recent study by Emory University School of Law found.
Criminal cases get the public’s attention, but they aren’t why corporations pump so much money into judicial elections. They care about other things.
A University of Vermont law professor issued a report in October faulting North Carolina’s Supreme Court for always ruling against environmental concerns in the last few years. (Hudson has been a frequent dissenter.)
That study looked at a small number of cases, but it raised the worry that energy companies know what they’re doing by spending money to elect judges.
Meanwhile, the public knows less about ethics complaints against the court. Catharine Arrowood, president of the N.C. Bar Association, wrote a scathing article in The News & Observer of Raleigh last week headlined, “An outrageous blanket of secrecy over N.C. courts.”
She referred to a bill passed last year, with little debate, that makes all proceedings of the state’s Judicial Standards Commission “confidential” until “issuance of a public reprimand, censure, suspension or removal by the Supreme Court.”
Furthermore, all complaints of ethics violations against a Supreme Court justice are now handled by the Supreme Court itself instead of by a panel of the Court of Appeals.
“There was no explanation of a specific case or a specific problem this legislation was designed to address,” Arrowood told me Monday.
One could guess that, if a citizen files a complaint asserting that a justice should recuse himself from deciding a case involving an energy company that spent $100,000 to help him get elected, someone thinks it’s better for the justice and his colleagues to dispose of that complaint in secret.
I don’t believe our Supreme Court is corrupt, but I would have more faith in its integrity if less money were spent to elect justices. Money and influence usually work hand in hand in politics.
We were lucky this election, but more money in the future will make it harder to maintain public confidence in our courts.
