Reporter’s Notebook: Tipping the Scales

May 7, 2015

Life of the Law's Ashley CleekYou know how when you learn a new word, all of a sudden, you see it everywhere? Reporting’s like that.

In January, I started looking into the election of judges in Alabama. I was reporting on other stories that had to do with the courts and every time I would speak with a judge, I would ask about his/her election, “how much did it cost?” “what about raising money?” “how did campaigning feel?” One local judge in Birmingham told me, as he pantomimed wiping sweat from his brow, that his campaign had cost hundreds of thousands of dollars and that elections were getting more expensive every year.

I started reading report after report from the Brennan Center for Justice at NYU’s School of Law about the rising cost of Supreme Court elections in states like Wisconsin, Ohio, and Alabama. I read papers by Justice at Stake and found that one of the lead researchers was a local Birmingham reporter named Eric Velasco. He’s been covering courts in Alabama for decades. We spoke for close to two hours about elections in Alabama and how they had changed since the 1990s. Velasco pointed me towards the Alabama Supreme Court election of 2006, which was the second most expensive judicial election in U.S. history. It was the last time a Democrat had been elected to the Alabama Supreme Court.

I contacted both candidates in the 2006 election, former Chief Justice Sue Bell Cobb and former Chief Justice Drayton Nabers. Cobb was quick to respond. Since she retired from the court in 2010, she has become a vocal opponent of judicial elections and recently wrote an article for Politico detailing her own campaigns and the worrisome trends she said she witnessed during her decades-long career as a judge.

After the interview, I asked Cobb if there were cases during her tenure where she felt the Alabama Supreme Court had been incorrect in their decision to reverse a civil appeal. I had been reading research from the Center for American Progress about how Supreme Court decisions had swung since the 1990s and how courts were more likely to decrease tort verdicts or reverse jury verdicts in tort cases altogether. Cobb mentioned a few cases very quickly, as if they had been on her mind for years. One case she mentioned ended up being the Wendy Baggett case, though I didn’t know it at the time.

One interesting story I discovered in Fordham Urban Law Journal, was written by former Judge Pam Baschab, who walked across the state of Alabama to protest judicial elections. When I went to interview Judge Baschab in North Alabama, I thought we would talk generally about the cost of elections and about her walk. I was completely surprised when she told the story of wanting to run for the Alabama Supreme Court and being told ‘no.’ I spoke to Baschab at length about politics and elections. Baschab is retired now but said she was worried that what she said in the interview could harm her daughter’s chances of being elected a judge in the same county where Baschab first campaigned for a local judgeship.

At this point in my research, everyone was telling me a similar story. It went something like this: “In 1994, Karl Rove came to Alabama at the behest of the Business Council of Alabama. Rove managed a few judicial campaigns. The campaigns were more negative and expensive than usual, and eventually, over a few election cycles, the Alabama Supreme Court switched from an all Democrat bench to an all Republican bench.”

I began emailing all of the judges who had been elected between 1994 and today. No sitting judges responded, but former Justice Harold See, who now teaches at Belmont University in Nashville responded that this was a topic he had great interest in academically. See is a proponent of elections, believing that people should know and care about the judges they elect. The ideal system, he explained, would be judges running for single terms of 10 years.

Still, I needed to find a case. Words like ‘tort reform’ and ‘judicial independence’ are far to esoteric when what we are talking about is the state court system, where 95 percent of all cases start in the U.S. It’s nearly impossible to prove the X contribution to a judge resulted in a Y ruling; the dots don’t connect into a bold, straight line. What I wanted to find was a case where someone had had to confront a reversal from the Alabama Supreme Court after having been awarded a verdict by a jury.

I called lawyers all over the state and started reading through cases that had been reversed. Attorney Randall Caldwell called me back immediately and spoke to me for over an hour about this one case, how he had tried it and why it had been reversed, etc. When I met Caldwell at his office in South Alabama, he gave me a binder of thousands of pages of trial transcript to read. (It costs thousands of dollars to have a transcript like this printed, so I told him if he would let me take it with me, I would bring it back on my nex trip south to the beach.) The town where he lives is small, so he drove me to Wendy Baggett’s beauty salon. Baggett was the plaintiff in the case. Her shop was closed. I came back the next day, still closed. I got her cell number and called numerous times, hoping she would answer, but thinking if I had been through what she had, I never would.

As with any story, there is so much left out in the end. I would love to have included research by Joanna Shepherd at Emory University about how judges change their verdicts in response to the number of radio and TV ads that are run during an election year. It would have been great to interview former Judge William Bowen, Jr. about how in states like Alabama the death penalty is so political that you cannot be against it and get elected. It would have been great to compare the different methods states chose of electing or appointing judges and the political movement for public financing of judicial elections.

The good news is, we will likely get to all these stories at Life of the Law. My story, “Tipping the Scales” is is just the beginning of our 10 part series on the state of the state courts in America.  Stay tuned.