Judges across the country are in a fight to keep their jobs. Unlike judges appointed to federal courts, many state judges have to run in elections to either get voted onto the court or keep their seat on the bench after they’ve been appointed and that means they have to convince voters, to vote for them. So they do what candidates in elections do: they go to state fairs, they shake hands, they kiss babies and they spend hours on the phone fundraising. And now, they dodge harsh attack ads.
Fifteen years ago, judges were pretty much exempt from attack ads. But today independent groups pour millions of dollars into state judicial races and fund attack ads hoping to influence voters, one way or another.
Jess Engebretson reports, in this fifth and final part of our series on A Fair Fight for a Fair Court, on the rise of attack ads in judicial elections.
Robin Hudson thought her campaign for the North Carolina Supreme Court was going well. She’d been a lawyer for decades, and knew the state’s courts inside out. And she was the incumbent — one term already under her belt. Still she kept up a grueling campaign schedule, crisscrossing North Carolina.
Hudson: They’re typically 12 hours days. At least. Seven days a week. At the beginning my goal was to get home before dark, and then that clearly wasn’t going to happen, and then the goal became to get home before 10 and that happened sometimes.
One April morning in 2014, Hudson was prepping for another marathon day. It was less than two weeks before the primary election. Early voting had just begun.
Hudson: I was sitting in my bed with my laptop, drinking a cup of coffee, it was early in the morning…
She opened her email to see if anything had come in overnight.
Hudson: …I got an email from one of my campaign people with a link to a TV ad that just said, have you seen this?
That was it — just the link.
Hudson: …and I clicked on the link immediately.
It was an attack ad.
Hudson: [laughs] It was not a great way to start my day!
The ad distorted a dissent that Hudson had written several years earlier. It featured images of an empty playground and shadowy predators. And it used an unflattering picture of her, with a grimace and dark circles under her eyes.
Hudson: Fortunately I didn’t have any time to sit in front of the television, because if I did, the TV ad was on every station — cable, network — nonstop all the time for ten days. It was carpet bombing by TV ad.
Ads like this one used to be pretty rare. Fifteen years ago, most state judicial races were low key. They didn’t cost a lot of money, they didn’t get a lot of attention. Then, around 2000, business groups like the Chamber of Commerce began to spend more money on judicial races — treating them like other political races. Alicia Bannon is Senior Counsel at NYU’s Brennan Center for Justice.
Bannon: In some ways it’s a lot cheaper to influence the composition of a state supreme court rather than amend the state constitution or even pass a bill through the legislature.
The influx of money started with business groups on the right. Then, left leaning groups jumped in on the action, too.
Bannon: …and essentially we saw an arms race of spending. And so you had interest groups on both sides putting a tremendous amount of money into judicial races essentially trying to influence who was sitting on the courts and then ultimately the decisions that those courts would be making.
The total money spent on judicial elections has risen dramatically over the past few decades. Ahead of the 1990 election, judicial candidates raised around $6 million nationwide. By 2012, that number was over $30 million dollars — and that’s not including the money that poured in from outside groups.
That’s where the 2010 Supreme Court ruling Citizen’s United comes in.
NPR: This is NPR. I’m Renee Montagne. In a sweeping decision today, the Supreme Court has struck down the century old ban on corporate spending in federal elections…[let run longer]
In Citizens United, the US Supreme Court ruled that political spending is a form of protected free speech under the first amendment. That means corporations and unions can to spend unlimited amounts of money on ads and other political activity.
But, they can’t donate directly to a candidate or campaign. So they give money to outside groups — politically active nonprofits with names like Americans for Prosperity or Progressive Kick.
Emory law professor Michael Kang has studied judicial attack ads. He says these outside groups tend to fund ugly attacks.
Kang: Outside groups tend to foot the bill for the really hard-hitting attack ads, because candidates and parties generally don’t want to be associated with the nastiest advertising and that tends to get outsourced to the outside groups.
Alicia Bannon, at the Brennan Center, has watched hundreds of these ads. She says they’ve become their own genre.
Bannon: You’ll have dark music and a scary-sounding voiceover. Oftentimes they focus on some decision that a judge made, oftentimes misleading…or talk about how a judge sided with criminals…
These ads aired earlier this year in Wisconsin and West Virginia — two states that held judicial elections in the spring. In those races alone, nearly 7 million dollars were spent on TV ads.
Courtney Goodson was one of the candidates in the Arkansas race for chief justice last Spring.
AD: The Democrat Gazette calls Courtney Goodson the ultimate insider.
When Goodson got hit with attack ads, her strategy was to hit back.
AD: Seen these ads backing John Dan Kemp? Shady and false paid for with dark money. Powerful interests are trying to buy our Supreme Court…
Goodson was responding to a series of attack ads run by the conservative group Judicial Crisis Network. It doesn’t disclose its donors, and it declined my requests for an interview. But the watchdog group Open Secrets used IRS filings to track some of its donors. The biggest one is another dark money group, the Wellspring Committee, which gives millions to conservative nonprofits.
AD: I’m Courtney Goodson. Let’s tell the dark money to get out of this race and out of our state.
According to the Brennan Center, Courtney Goodson spent about $300 thousand on TV ads like this one. The Judicial Crisis Network spent about twice that. Goodson lost the race. But she was actually running for a promotion – to become chief justice, which means she still gets to keep her current seat on the court. She has two years left in her term. She’ll be spending them on the bench with her opponent, Dan Kemp.
Kemp: I don’t expect any problems. We’ve met several times since the election, she’s been nothing but cordial to me. I think we both pledged to o have a good working relationship with each other. I think that’s what’s going to happen. To the surprise of many, probably.
Kemp says he’d never heard of Judicial Crisis Network before the attack ads came out. He responded on Facebook to one of them, writing he was deeply concerned, but he didn’t go into much detail. Goodson tried to turn the ads against him. It got pretty messy.
One obvious way that attack ads influence state court is by helping defeat one candidate and elect another. But ads can also influence judges in more subtle ways. Take Robin Hudson, the justice from North Carolina whom we heard from at the beginning of our story. In 2014, She won her May primary — but she was anxious she might be attacked again in the general election that November.
Hudson: But then we had no idea between then and November if they were going to do it again — you know, run another ad, double down and run more ads that were worse. Because I knew they had run six weeks of ads in 2012. We just had no idea. So the whole year was pretty nerve wracking.
That nerve-wracking fear of attack ads can affect the way judges do their job. Imagine: you’re a justice on a state supreme court, and you’re preparing to run for re-election in a year or two. You’ve seen harsh ads targeting some of your colleagues. You know there are well-funded interest groups pouring money into judicial elections. You’d like them to spend their money supporting you, rather than attacking you. The question is, could this affect how judges rule on hot-button issues?
Kang: We looked at cases from 2008-2013, and what we found was that as the number of attack ads in state supreme court races went up in a state , the justices in that state become more likely to decide against a criminal defendant — they become more conservative in criminal cases that come before them.
Kang and his colleague, Emory Law Professor Joanna Shepherd, also found that after the Citizens United decision, state supreme court justices were less likely to rule in favor of criminal defendants. That suggests the rise in corporate spending has actually changed the way judges rule, at least in some criminal cases.
Kang: It’s not clear that we want a system where a criminal defendant gets treated differently depending on how likely the justice is to get re-elected or how much money the justice needs to win re-election.
Not everyone shares Kang’s skepticism. Chris Bonneau is a political scientist at the University of Pittsburgh. He sees cases where judges change their minds in a more positive light.
Bonneau: So, we can interpret that one way and we can say, t ‘oh, this is awful, judges are changing their views, and this means that they’re being influenced by the public and this is bad thing for judicial independence.’ Well, it’s also a good thing for judicial accountability. If we think that the voters in a state have some say in what the laws and what the constitution should mean, the fact that judges are changing their views to be more consistent with the voters, means that these judges are being held accountable.
Michael Kang doesn’t buy this argument. He says that if justices were being held accountable to voters, then liberal justices would start making more conservative decisions, and conservative justices would start making more liberal decisions. Kang says that’s not what happens.
Kang: The thing is that every justice basically corrects in a conservative direction and none correct in a liberal direction. You don’t see conservative justices realizing, oh, I am to the right of the median voter, and so I need to let some criminal defendants off because the constituents in my jurisdiction are more liberal than I am. And so I correct toward the left. That doesn’t happen. They’re all correcting in the same direction.
Kang says that suggests that judges aren’t changing their decisions to woo voters. They’re changing their decisions to avoid “soft on crime” attack ads.
There are alternatives to electing judges. In some states, judges are appointed by the governor or legislature. They don’t have to spend huge amounts of time campaigning and fundraising, and they don’t have to worry about attack ads. But Alicia Bannon says that doesn’t necessarily mean the judges in those states aren’t political.
Bannon: It’s actually also an issue even in states that use appointments. That judges tend to make decisions that are consistent with the preferences of whoever’s going to make a decision of whether they can stay on the bench.
Bonneau: And so, the question really becomes, do you want your politics explicit or implicit? For me, I prefer explicit. I prefer to have things out. I use an analogy sometimes, would you rather be stabbed in the back or punched in the face?
For Chris Bonneau, getting punched in the face is having the politics of judicial elections out in the open — on the TV for everyone to see. Getting stabbed in the back? That’s having the governor or state legislature shape the court behind the scenes.
Bonneau: I’d rather be punched in the face. I think transparency is a good thing. I think we should have tough disclosure laws both for independent groups and for candidates. I far prefer that than to have these groups giving money to the governor and the governor’s campaign behind closed doors and then having governor be able to appoint somebody.
Two years ago, despite the attack ads, North Carolina voters re-elected Robin Hudson to the North Carolina Supreme Court. Hudson thinks, in the end, the attacks actually helped her.
Hudson: It made our fundraising much easier — I didn’t even have to say anything: this is Robin Hudson or Justice Hudson calling and they’d say, ‘oh, I hate what they did’ or, ‘where can I send a check?
She’s now two years into her eight year term. Because of the court’s mandatory retirement age, she likely won’t run again. But she’s frustrated that attack ads like the one she faced continue to influence judicial races around the country. So Hudson is working with a group that tries to educate voters about the role of money and interest groups in the court system.
Hudson: If you look at our constitution, and the state constitutions and the oath that we take, to be fair and impartial and to not show favoritism to anyone, you wouldn’t think that spending a lot of money to influence somebody in order to further a particular agenda is consistent with the oath that we take and the job we’re supposed to do, administering justice impartially and fairly.
Hudson’s hope is that when voters this fall do see an attack ad, they’ll know to watch skeptically.
For Life of the Law, I’m Jess Engebretson.
Judges v. Attack Ads was reported by Jess Engebretson and edited by Ibby Caputo, with sound design and production by Tony Gannon. Our Music was from The Audio Network. Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain. Special thanks to Benjamin Hardy for his help with reporting this episode. Howard Gelman was our engineer.
We’d also like to thank Professor James Gibson of Washington University in St. Louis for his Scholarly Advice about judicial elections.
If you’ve missed any part of our five part series on A Fair Fight for a Fair Court, you find this special election year series on our website lifeofthelaw.org. And stay tuned, we’ll be publishing the entire series with updates and commentary as a two-part series in November on Life of the Law as a podcast. The series will also be available as a two-hour election year special on public radio stations
If you like stories about the law but have gotten tripped up by the legal system, tune into Life of the Law on iTunes. Take a few minutes to post your review, like us on Facebook and follow us on Twitter.
Each time we publish a new episode we send people who’ve subscriber to our newsletter a behind scenes look at Life of the Law, that includes behind the scenes notes from our reporters. This week, Jess Engebretson describes her reporting on some of the worst attack ads in this year’s election. You can subscribe at lifeofthelaw.org.
We’re a non-profit project of the Tides Center and we’re part of the Panoply Network of Podcasts from Slate – connecting sophisticated listeners with top publishers and thinkers. Panoply.fm
You can also find Life of the Law on PRX, Public Radio Exchange.
We’re funded by the Open Society Foundations, the Law and Society Association, the National Science Foundation, the Proteus Fund and by you. Visit our website, Life of the Law.org and make a very much appreciated donation to help pay for the direct costs of producting our episodes. It truly only takes a minute.
I’m Nancy Mullane. Thanks for listening.