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The character and tone of state judicial contests and retention elections have taken an ominous turn for the worse. This year, a variety of interest groups, politicians and judicial candidates adopted win-at-any-cost strategies. Unless steps are taken to stop this trend, the public’s trust and confidence in an impartial judiciary will plummet, along with the quality of the judges who find the environment tolerable. The races for seats on state supreme courts look more and more like all other major political contests. Candidates and interest groups throw big money into the contest. Negative ads assault potential voters. Instead of discussions about complex issues, catch phrases are tossed to the public in hopes of replacing reason with emotion: References to abortion, medical malpractice, tort reform, family values, the death penalty and the occasional reference to God seasoned campaign literature and advertisements this past fall. This year, judicial candidates raised more than $40 million for their contests. (How many new courthouses would $40 million build? What would a $40 million fund for judicial independence be able to accomplish?) In Illinois alone, Lloyd Karmeier and Gordon Maag spent more than $8 million for a contested seat on the Illinois Supreme Court. In 15 states, the public watched television commercials that packaged and sold judicial candidates. The Brennan Center for Justice estimates the cost of those ads at about $19 million. The Missouri Bar conducts an evaluation of every nonpartisan judge up for retention in the state. Lawyers rate judges on the qualities and characteristics that good judges should possess, such as fairness, legal analysis skills and integrity. No lawyer has ever suggested that an essential requirement for being a judge is a large sum of money in the bank that can be tapped for television commercials. But in 15 states, money is replacing experience, temperament and intellectual strength as a requirement for becoming a judge. The public does not gain Money that is turned into television ads does not educate the public. Frequently, it misleads them or disgusts them. Negative ads in the Illinois race portrayed a justice system that coddles child abusers and that is dependent on money from “sleazy, back-scratching, money grubbing politics.” A Michigan ad showed a judge smiling while a narrator warns that the judge believes employers can legally sexually harass women. Interest groups pushed politics into a Missouri Supreme Court retention election by broadcasting automated telephone messages against the retention of Judge Richard Teitelman. Thousands of voters received a recorded message from conservative Phyllis Schlafly, opposing the judge and calling him one of those “liberal activist judges who are against traditional marriage, rule for abortion, rule against gun rights, reduce the sentences of brutal murderers and side with trial lawyers . . . driving doctors out of our state.” The National Rifle Association, a formidable force in politics, also stomped into the middle of Teitelman’s retention election, urging his defeat in its Missouri voters’ guide, which claimed he “doesn’t believe that Missourians have the right to personal protection.” The distortions weren’t effective in stopping Teitelman from being retained but were effective in presenting Missouri’s courts as biased and unfair-something no evidence supports. The negative campaign also put other judges on notice that it takes only one decision that one interest group doesn’t like to be labeled and held out as an enemy. Started in Missouri in 1940, the Nonpartisan Court Plan-the elements of which have since been incorporated in part in 34 other states-is designed to reduce the role of politics in judicial selection and retention. In addition to screening judicial candidates and ruling out those who may not be qualified for the bench, it spares judicial candidates from political campaigns. If judicial retention elections take on the look and feel of other political contests, the pool of potential candidates will be drained, leaving only those who have the stomach or desire for crude partisan politics. Each bitterly contested judicial election and each interest group attack on nonpartisan judges chips away at the independence of the judiciary. If enough lawyers recognize this threat, changes are possible. In 2002, North Carolina took a giant step forward in limiting the role of money in judicial elections. The state established a check-off on its state income tax, allowing voters to designate $3 to publicly finance state appellate races. The stated purpose of the law that established the check-off is “to protect the constitutional rights of voters and candidates from the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of elections.” Many bar associations and some state governments already offer voters an alternative to negative advertising. They conduct evaluations of judicial candidates and try to publicize the results. But in most cases, their promotion budgets are minuscule compared with the ad budgets of interest groups or the candidates themselves. More emphasis on judicial evaluations and voter education can’t hurt. But it may not be enough. Stopping this destructive trend will not be easy. Whether it can be stopped at all depends on politicians, the legal community, interest group leaders and average citizens being able to see beyond their own immediate interests. We must build barriers to hold back the incessant pressures of those who would put the interests of some above the interests of all. Jack Wax is media relations director for the Missouri Bar, which is developing a variety of new programs to educate the public, civic education teachers and state legislators about the role of judicial independence and the nonpartisan court plan.

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