WASHINGTON, D.C.—The Supreme Court battle will be extremely expensive, perhaps $50 to $100 million. One group, Progress for America, spent $45 million on Bush’s last presidential campaign. It already has committed $18 million for the Supreme Court fight. Much of the money will be used to influence moderate Republican senators and those senators the right wing deems to be wishy-washy when it comes to backing a conservative.
In many respects the campaign for a Supreme Court justice is a sort of election, with the members of the Senate being the electors who are influenced by their constituencies. One big difference is that most of the money used to win a seat on the Supreme Court does not have to be reported.
In fact, while many people may not know it, judges are often elected like any other politician. Thirty-nine states elect judges. In Pennsylvania it costs $1 million to win a judgeship. In Texas the price tag can top $2 million. In a November 1999 Frontline report, Bill Moyers delivered a devastating portrait of just how the U.S. buys its judges.
“People don’t go pour money into campaigns because they want fair and impartial treatment,” said Bob Gammage, a former Texas Supreme Court justice. “They pump money into campaigns because they want things to go their way.”
Helen Lavelle, a media consultant who helps plot campaigns for judgeships, told Moyers, “We’re in a system where elections can be bought.”
Lawyers are the main group financing judgeship campaigns. Sheila Kaplan and Zoe Davidson report in The Nation that the tobacco industry, casinos, insurance companies, doctors, and the religious right are others that pump cash into electing judges.
Often lawyers who practice before a judge are at the heart of the action, pushing a candidate in the interests of a client, usually an industry group or individual company. Frontline captured one of these attorneys fawning at a fundraiser: “And I look forward to that first time that I’m standing before you, and I have to say, ‘Your Honor.’ I really am! That’s going to be the greatest thrill!”
Lavelle put it bluntly: “Other people who are in my profession will be ready to kill me. I don’t care. I don’t. I think that the amount of money flowing around out there to get people judicial seats is obscene. It’s unfair, and people are ending up with a chance to be on a bench who have no business being there. I really believe that we are in a system where elections can be bought. It’s sad.”
On the same program, two Supreme Court justices talked frankly about money influencing the choice of judges. Some would say their comments would apply to the Supreme Court race.
“The campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly-burly, rough-and-tumble,” said Anthony Kennedy, the justice the right loves to hate. “This is a difficult world for a jurist, a scholarly, detached neutral person, to operate within. Now when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we’re concerned that there will be either the perception or the reality that judicial independence is undermined.”
Stephen Breyer, a somewhat liberal member of the Court, added, “And independence doesn’t mean you decide the way you want. Independence means you decide according to the law and the facts. Law and the facts do not include deciding according to campaign contributions. And if that’s what people think, that threatens the institution of the judiciary. To threaten the institution is to threaten fair administration of justice and protection of liberty.”
Kennedy elaborated: “This is serious because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral.” He added, “To begin with, we have to ask, is it fair for the electorate to try to shape the philosophy at all, without campaign contributions? Is this a proper function? I am concerned about that. I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality, and commitment to other more constant values as to which there is general consensus.”
If George W. Bush feels compelled to pick a woman to replace Sandra Day O’Connor, there are four much discussed potential candidates:
EDITH JONES: Once referred to as “the Federalist Society pinup girl” and the “horsewoman of the right-wing apocalypse,” Jones famously told a defense lawyer that his last-minute appeal in a death sentence case was ruining her cocktail hour.
Jones, appointed by Ronald Reagan to the Fifth Circuit Court of Appeals, has said she doubts that lawsuits result in social justice. She was Bush Sr.’s choice after David Souter, is thought to have business acumen, and is the female candidate with the most experience.
In Jones’s view, the legal system has been corrupted. “The first 100 years of American lawyers,” she told the Harvard Federalist Society, “were trained on Blackstone, who wrote that ‘the law of nature, dictated by God himself, is binding in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority from this original.’ The Framers created a government of limited power with this understanding of the rule of law—that it was dependent on transcendent religious obligation.”
PRISCILLA OWEN: A former judge on the Texas Supreme Court, where she was a colleague of Alberto Gonzales, Owen was fiercely opposed recently by Senate Demo-crats, who finally relented in 2003 and let her nomination to the Fifth Circuit pass. Owen, a Federalist Society member, is strongly opposed to abortion, urging “stricter interpretation” of state law requiring women under 18 to inform their parents before seeking an abortion. According to the National Organization for Women, Enron’s PAC gave Owen $8,600 for her Texas Supreme Court race in 1994. “Two years later,” according to a NOW report, “Owen wrote a majority opinion, reversing a lower-court order, that reduced Enron’s school taxes by $15 million.”
JANICE ROGERS BROWN: Newly appointed to the D.C. Appellate Court, she might seem a long shot, but Brown would be the first black woman on the Supreme Court, a big PR plus for Republican pols who want to wean black voters away from Democrats. They allowed her nomination to the D.C. Court of Appeals to pass without a filibuster. The daughter of an Alabama sharecropper, Brown is a former California Supreme Court judge and is said to have a libertarian bent. Included among her memorable quotes are these gems:
The New Deal marked “the triumph of our own socialist revolution.”
Social Security cannibalizes children.
“Where government moves in,” Brown has declared, “community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility; and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.”
EDITH BROWN CLEMENT: A former federal judge in the eastern district of Louisiana, she’s on the Fifth Circuit now. Clement is thought to be a trustworthy conservative, but she has participated in few controversial cases. In one case she limited the claim in an auto accident suit, giving conservatives reason to believe that at the very least she would support Bush in his attack on lawyers and demands for tort reform.
Additional reporting: Natalie Wittlin and Halley Bondy