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Judicial races across the country have toned down their ugliness from two years ago, with major exceptions in Ohio and Mississippi. And while the level of the election combat may not be as intense, the cost of judicial elections remains high. “The campaigns don’t seem to be as nasty or noisy, though they may be as costly,” says Allan Ashman, director of the Hunter Center for Judicial Selection at the American Judicature Society. Thirty-three states are electing supreme court judges this year. The change in tone may be the result of several factors, including the U.S. Chamber of Commerce’s reconsideration of its high-profile role since the last election cycle two years ago, which may have backfired; and a diversion of money and attention from the judicial elections to close gubernatorial and congressional races. The 2000 state supreme court elections were remarkable because the races attracted huge sums of money, unprecedented special interest pressure and unheard-of amounts of television advertising. According to New York University Brennan Center for Justice, which closely studied the 2000 elections, candidates raised $45.6 million, a 61 percent increase over the amount raised in 1998. A significant portion of that money went for television advertisements, with more than $10 million spent on more than 22,000 airings. Special interest groups were major players in the “air wars,” often running personal attack ads against specific candidates. The special interest groups were sponsored mainly by lawyers and business organizations, but largely eluded disclosure of who was paying for the ads and how much was spent. Alarmed that the 2000 election conduct demeaned the judicial system, a number of organizations, including the American Bar Association, the American Judicature Society and the Brennan Center, organized an umbrella organization called Justice at Stake. The nonpartisan group seeks to protect the integrity of the courts by monitoring the races, educating the public and working toward securing judicial independence. “A large number of Americans are concerned that money and special interests affect the outcome of court verdicts and that undermines the faith in justice,” says Geri Palast, executive director of Justice at Stake. FREE SPEECH FOR JUDGES This year’s restrained tone comes as a surprise to many court watchers, given the U.S. Supreme Court’s June ruling that judges are free to state their position on issues. Republican Party of Minnesota v. White, No. 01-521. Many thought White would ratchet up the nastiness of the rhetoric during this election season. But watchdog groups say the White decision hasn’t had much effect — with some notable exceptions. “The vast majority of judicial candidates take their role very seriously. It is their job to hear each case on their merits and apply the law to the facts of the case,” says Barbara Reed of Washington D.C.’s The Constitution Project, a nonpartisan group that is also a part of Justice at Stake. Others aren’t so high-minded. “It’s still sort of being absorbed,” says Alfred P. Carlton Jr., president of the ABA. “It takes a while for something like that to work its way into campaign practices.” Whatever the reason, those candidates who have been broadcasting their views on issues are mostly newcomers, challenging the incumbent judges. So far this year, three new states have begun airing commercials for supreme court candidates but the tone has remained muted. “We haven’t seen any of the really scandalously borderline libelous ads of 2000,” says the Brennan Center’s Deborah Goldberg. While observers say the last week of the campaigns could still bring the current tone of the elections up to the acrimonious levels of 2000, they think there are a variety of reasons why this election year does not appear to be headed that way. “Because there are so many heavily contested races for governor and senator, they may be siphoning off the money for judicial elections,” says Goldberg, deputy director of the Brennan Center’s Democracy Program. “That’s certainly the case in Michigan and Texas as well.” Another factor could be current events. “This is the first full election cycle since the Sept. 11 attacks and with a potential war with Iraq and the economy — judicial elections don’t have a lot to say about those things,” says Reed. CHAMBER’S INFLUENCE But a critical influence could be the behavior of the U.S. Chamber of Commerce. The chamber sponsored a number of highly visible ads two years ago, often against the will of the candidates on whose behalf they were run. Some of those candidates, including several in Ohio and Mississippi, did not win their races. Many observers suggested that the public perception of the organization as an outside influence caused a backlash. While the chamber was widely reported earlier this year as promising to spend $25 million or $30 million on state attorney general and judicial elections this election cycle, its strategy and participation in the elections this year is drastically different. It is not running any ads with its name prominently displayed and its influence has been much less visible — at least so far. “We are going to give some support to some groups but we’re not going to comment on which ones in which states,” says James Wooton, head of the chamber’s Institute for Legal Reform. “Our preference is that people in the states who have an interest are leading the educational efforts.” He also declined to say how much money the chamber was spending and who has given the money to the chamber. The chamber, however, has been behind a number of television ads, aired mainly in the South, that say that consumer lawsuits against businesses are clogging the courts and adding to the cost of products. The campaign enraged ABA president Carlton, who issued an open letter countering with statistics that showed that contract-disputes filings — suits brought mostly by businesses — had risen faster than personal injury filings. Wooton says the ads, which started around Labor Day and ended in early October, weren’t connected to the elections but were meant to “generate discussion.” For those in Mississippi not sharing the national perch of Justice at Stake, the election experience is grueling. “I turn on the 10 o’clock news or the weather channel, and I can’t hide,” says University of Southern Mississippi political science professor Joseph Parker. He thinks this year is even worse than the nasty campaign there two years ago. In Mississippi, three candidates are competing for one state supreme court seat. The race is particularly hard fought because incumbent Charles McRae, who is perceived to be friendly to the trial lawyer’s bar, is on track to become chief justice on a supreme court divided among liberals, conservatives and a sizeable number of swing votes. McRae’s biggest competition is from Jess Dickinson, a Gulfport, Miss., lawyer who has received backing from medical, insurance and business groups and announced his pro-gun, pro-death penalty stance. According to the Jackson, Miss., Clarion-Ledger, by Oct. 11 Dickinson had raised $617,332. Parker says that he hears that Dickinson could raise as much as $4 million — a number that’s higher than what most candidates for governor spend in Mississippi. McRae has raised $298,290, while the third candidate, Larry Buffington, a Chancery Court judge, has a little more than $26,000, according to The Clarion-Ledger. UGLINESS AND DIRTY WORK Prior to the election season, Mississippi Supreme Court Chief Justice Edwin Pittman had made efforts to promote judicial independence. Despite his leadership, things have gotten ugly. So far, the candidates haven’t directly attacked each other in television ads, but they haven’t had to. At least 10 special interest groups have stepped up to do the dirty work. According to a report released last week by Justice at Stake, the Law Enforcement Alliance of America has spent more than $110,000 as of Oct. 19 on ads promoting Dickinson and attacking McRae. That represents 60 percent of all ads aired in Mississippi. Nine other special interest groups, largely divided into those espousing tort reform and those criticizing tort reform platforms, are running ads. The issue was one that gripped the Mississippi Legislature, which met for a special session this year to pass tort reform legislation. A typical ad does not mention any elections. For example, one by the Mississippi State Medical Association depicts a couple turned away from a hospital as the woman is going into labor. Doctors are fleeing the state because of malpractice insurance costs, it explains. David Baria, president of the Mississippi Trial Lawyers Association says that despite their indirectness, the commercials are having an effect on the court race. He criticizes them for being dishonest. “In the last 40 years, the supreme court has affirmed a total of $16 million in punitive damages awards,” Baria said. “You compare this to the 50 states in the country. We’re either the lowest or closest to the bottom.” Mississippi’s race became more contentious a month before the election as federal and state prosecutors announced an investigation of two prominent trial lawyers: famed tobacco lawyer Richard Scruggs and Paul Minor. The probe is centered on whether they repaid the loans of two judges who were up for election in the last race, including current Mississippi Supreme Court Justice Oliver Diaz Jr. Neither the lawyers nor the judges have been accused of anything illegal and many, like Baria, think it’s an example of more lowdown politics. Mississippi U.S. Attorney Dunn Lampton, who supported Diaz’s opponent in the 2000 election, is leading the investigation. (Officials have declined all media interviews since the probe was made public.) Mississippi’s situation, along with the contentious elections in Alabama and Ohio, has Justice at Stake’s Palast grimmer about the improvements in this year’s election compared to 2000. “The nature of the problem remains,” she notes. But she points to the recent judicial reform legislation in North Carolina as a victory for preserving an independent judiciary. A month before the election, North Carolina Gov. Mike Easley signed into law the first full-funding system for judicial elections. The fight over appropriate conduct may be just beginning. A recent 11th U.S. Circuit Court of Appeals ruling said judicial candidates can directly solicit money and endorsements and freely criticize opponents. Weaver v. Bonner, No. 00-15158.

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