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Despite hand-wringing predictions that the 2002 judicial elections would prove to be even nastier and more costly than the ones in 2000, the trend in both contentious and sedate races was to elect conservative business-oriented candidates to state supreme courts. Mississippi voters turned out the self-proclaimed supreme court justice for the “little man” and replaced him with a Gulfport lawyer widely described as uncharismatic but with the support of doctors and businessmen. The Ohio Supreme Court swung right with the addition of the Republican lieutenant governor and the retention of the court’s most conservative justice, both generously supported by business interests. In Texas, Alabama and Michigan, court watchers had expected repeats of the divisiveness of 2000 but witnessed much quieter affairs. Voters in those states also opted for the conservative candidates. Voters in two states said no to unusual propositions. South Dakotans rejected one to allow defense lawyers to tell jurors they could acquit a guilty defendant if a conviction would be unjust. Oregon voters, by 57 percent to 43 percent, refused to let future voters to select “None of the Above” in judicial elections. The measure was pushed by longtime initiative activist Don McIntire of Gresham, Ore., who called it a way to give a voice to voters who knew nothing about the candidates. Also in Oregon, with 97 percent of the votes counted, a proposal to elect justices from geographic districts was losing 51 percent to 49 percent. Coming off the watershed 2000 elections, in which special-interest cash changed the face of campaigns, pundits expected this year’s races to top all previous experiences. Angered at what they perceive as a legal mugging on corporate pocketbooks, insurance companies and their allies, on the one side, and trial lawyers and their allies on the other, contributed $45.6 million to judicial candidates in 2000 — a 61 percent increase from 1998. Then in June 2002, the U.S. Supreme Court ruled that judges were like all other candidates, and were free to state their positions on political issues — even those they are likely to face on the bench. Though final numbers won’t be available for months, judicial campaigns raised about $20 million this year, says Geri Palast, executive director for Justice at Stake Campaign, a Washington, D.C.-based coalition of 30 organizations pushing to depoliticize judicial elections. The number of states where television played a role in judicial campaigns increased from four in 2000 to nine in 2002. “From our point of view, the trends continue: We’re seeing an unusually large role being played by special interests,” Palast said. And while some high court elections were relatively mild affairs, the two states where the balance of power was still in play — Mississippi and Ohio — produced advertising that was blisteringly negative. The link to negative attack ads is the involvement of out-of-state special-interest money, says Amanda Cooper of the Brennan Center of Justice at New York University School of Law. The Brennan Center found that special interest groups — both insurance- and trial lawyer-based — played large roles in Ohio and Mississippi and bankrolled about 80 percent of the negative ads. In the other states, such as Michigan, Texas and Alabama, where judges who support business interests already dominate the high courts, special-interest funding was negligible. In Mississippi, the Brennan Center documented 393 attack ads as of Nov. 2, all but two of which were funded by special-interest groups. Mississippi Supreme Court Justice Chuck McRae of Pascagoula lost his seat after polling third in a three-man race. He was beaten by Jess Dickinson of Gulfport, who garnered 52 percent of the vote. Though never very supportive of individual litigants over business interests, Mississippi Supreme Court justices nevertheless find themselves targeted by frustrated doctors and businessmen who repeatedly have tried and failed to pass a tort reform package through the legislature. Judicial races in Mississippi are statutorily nonpartisan, but “trial lawyers” and “pro-business” interests have taken the place of traditional parties. During the 2000 election, out-of-state interests, particularly the U.S. Chamber of Commerce, pumped hundreds of thousands of dollars into campaigns that had once been waged at Rotary Club lunches and church dinners-on-the-grounds. MIXED SUCCESS FOR CHAMBER The chamber’s massive television buys met with mixed success as the targeted candidates were able to bat away much of the televised criticism by pointing out that outsiders were trying to tell Mississippians how to run their affairs. In 2002, however, the big money hid behind nominally “local” organizations, several of which had no telephone numbers listed. At least 10 groups were willing to level personal attacks so that candidates wouldn’t have to. For instance, during one prime-time hour on the night before election, one Biloxi station ran five commercials by three groups that questioned McRae’s integrity, including one that slapped a banner reading “No Common Sense” across his face. During that same hour, Dickinson ran a single 30-second commercial that included all the tried-and-true Mississippi touchstones: flags, children, picnics, firefighters, cops and churches. McRae did not air an ad during that hour. Dickinson rarely let an opportunity pass in which he did not mention McRae’s past legal problems. McRae pleaded no contest to drunk driving in 1995, was arrested for drunk driving in 1998 (that charge was dismissed) and was found guilty of speeding on his motorcycle through Jackson. “He was a big, fat target,” says Joseph Parker, a political science professor at the University of Southern Mississippi in Hattiesburg. “It was not just riding a big Harley.” McRae found himself as the sole dissenter, usually supporting plaintiffs, in several high court decisions. Dickinson raised $877,018, according to the Oct. 29 finance disclosure, the latest available. The reports do not include monies raised by special-interest groups. “If you added up all the money spent by and for Dickinson, you’re looking at $3.5 to $4 million, and we’ll never know for sure,” Parkers says. McRae had raised $499,114. Parker says the age of dignified, low-key judicial campaigns is over in Mississippi. “What’s the line? About elections being democracy’s banquet?” he says. “Well, these elections have become democracy’s fast food.” Mississippi voters handily rejected a constitutional amendment to lengthen trial judges’ terms from four to six years. The amendment was a cornerstone in Mississippi Supreme Court Chief Justice Ed Pittman’s campaign to eliminate politics from judicial races. OHIO’S CONSERVATIVE OUTCOME After a contentious multimillion-dollar race in Ohio, voters elected to make their seven-seat supreme court majority more conservative. GOP Lieutenant Governor Maureen O’Connor of Akron beat Democrat Tim Black, a Hamilton County municipal court judge, with 57 percent of the vote. Incumbent Justice Evelyn Lundberg Stratton, who has the highest pro-business ranking on the high court, was returned to her post with a 55 percent majority over Cleveland judge Janet Burnside. The addition of O’Connor likely will upset the 4-3 majorities that have favored plaintiffs, according to Ohio State University political science professor Lawrence Baum of Columbus. Bowing to the court’s changing face, Chief Justice Thomas Moyer on Nov. 6 announced his intention to press for an immediate ruling in that state’s 11-year-old public school funding case. Moyer was quoted in The Cleveland Plain Dealer as saying “We should resolve this before the makeup of the court changes.” O’Connor promoted her conservatism in her campaign to replace retiring Justice Andy Douglas, who though a Republican had helped form the 4-3 majorities issues such as school funding and tort reform that had so angered Ohio’s business, insurance and medical industries. O’Connor and Stratton each raised $1.5 million, about double what plaintiffs’ lawyers and organized labor ponied up for their champions, Black and Burnside. O’Connor and Stratton ran 5,095 television advertisements — almost twice as many as their opponents. Four special-interest groups ran another 3,776 ads, according to the Brennan Center. The Brennan Center said that 815 out of the 1,099 attacks aired before Nov. 2 were paid for by special interest groups. Texans swept Republicans into a state supreme court that has been all-GOP for a decade. Observers there had been eyeing voter reaction to Steven Wayne Smith, one of the few candidates in the nation to take advantage of the U.S. Supreme Court’s license to discuss political issues freely. The Austin, Texas, solo practitioner defeated an incumbent in the primary. Then, with only $18,440, he faced Democrat Margaret Mirabel, an intermediate appellate court justice from Houston, who had amassed $604,564 and collected the business, medical and tort reform support that usually backs Republican court candidates. In the end, Smith’s campaigning appeared to be less important than the “R” next to his name on the ballot. In the five contests for the nine-seat Texas Supreme Court, only three percentage points separated the top vote-getter, Chief Justice Thomas R. Phillips, who polled 2.4 million ballots, and the winning candidate with the fewest total votes, Smith, who received 2.2 million votes. This year’s quiet high court contest in Michigan contrasted sharply with the $15 million mudslinging brawl of 2000. Incumbents Elizabeth Weaver and Robert Young Jr., both Republicans but not identified as such on the ballot, walked away with the election, scoring more than twice as many votes as the two Democrats, the next two highest vote-getters. In Alabama, incumbent Justice Harold See garnered 51 percent of the vote over Democrat challenger James Anderson of Montgomery. Expected to be one of the dirtiest races in the country, the race attracted virtually no special-interest money.

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