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It’s a good thing judges wear black, because a lot of dirt is being thrown around these days. The 2000 judicial campaigns featured the nastiest, most injudicious rhetoric in memory, and record spending drove the contests to new heights of visibility. The chief judges from 17 states will convene in Chicago later this month to study the problem. On the eve of the summit, sponsored by the National Center for State Courts, a look back at the election that was: � Ohio Supreme Court judge Alice Resnick became a target when she wrote the decision striking down the state’s tort reform act. In response, business interests formed Citizens for a Strong Ohio, whose estimated $3 million to $5 million campaign against Resnick reached its nadir with an ad showing Lady Justice lifting her blindfold to peek at the scales of justice, which were stacked with money — presumably placed there by the trial lawyers who reportedly spent most of the $l million in independent expenditures made on her behalf. A voice-over intoned, “Alice Resnick. Is justice for sale in Ohio?” Resnick won. � Typical soft-on-crime accusations against Michigan Court of Appeals judge E. Thomas Fitzgerald took a personal twist in an ad by the Republican party that accused him of going easy on a man convicted of molesting a 7-year-old girl. The ad showed an unidentified man, under which the words “Fitzgerald” and “pedophile” were prominently displayed. Fitzgerald lost. � In Idaho last spring, a group acting on behalf of the Christian Coalition sent judicial candidates a questionnaire asking for their positions on abortion, school prayer, and gun control. Republican challenger Daniel Eisman affirmed his conservative credentials on each point, including his belief that humans didn’t “evolve from life forms in the sea.” His opponent, Kathy Silak, refused to answer, citing judicial ethics and the separation of church and state. Silak became the first sitting judge to lose in that state since 1944. How did things get so bad? Blame special interests, with pro-business groups leading the way. These organizations have used similar techniques to influence legislative and executive elections for years. What took them so long to start on the judiciary? “They didn’t know how to do it,” explains Abner Mikva, former chief judge of the U.S. Court of Appeals for the D.C. Circuit and cochair of the American Bar Association’s judicial independence panel. “It wasn’t until the Texas elections about ten years ago [which were dominated by pro-business groups] that special interests realized they could influence the judicial system through campaign contributions.” The candidates themselves aren’t exactly innocents. “Some of the candidates, the younger ones in particular, think the name of the game is ‘who can yell loudest.’ That scares away some of the more thoughtful, studious lawyers,” says Mikva. Political consultants, who learned the trade in legislative elections, only serve to boost the volume. This season’s high-visibility campaigns have triggered both posturing and real reform efforts. One of the more serious is the summit of chief judges. “Judicial elections are fundamentally different from other elections, and they ought to be conducted in a different way,” says Tom Phillips, chief justice of Texas, one of the leaders of the conference, and the “John McCain” of judicial election reform. Possible solutions under discussion are public financing, the use of voter guides compiled by nonpartisan bodies, stricter recusal rules, and longer terms. Merit selection is thought to be a lost cause. Another avenue of attack focuses on the judges. Although the First Amendment severely restricts regulation in this area, Mark Kozlowski of New York University Law School’s Brennan Center for Justice argues that some restrictions on their speech are permissible, such as a rule against knowingly “false” statements. He also believes that state judicial oversight boards, which can issue corrections and criticism for misleading ads, have untapped power. But little can be done about the biggest problem of all — special interests. The First Amendment forbids virtually all restrictions on speech and spending by these groups. As a result, nobody is too optimistic. “These campaigns are a portent of things to come,” says Mikva. “It bodes very badly for the future of judicial independence.”

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