Former Indiana Supreme Court chief justice condemns big money in judicial elections

By Jessica Wray
SHFWire

WASHINGTON – Former Indiana Supreme Court Chief Justice Randall Shepard argued Tuesday about the importance of keeping campaign money and strategies out of judicial elections.

Former Indiana Supreme Court Chief Justice Randall Shepard says Indiana has largely been spared from highly politicized judicial elections. To combat misleading and distorted attack ads, he said, voters need to be educated about what makes a good judge. SHFWire photo by Jessica Wray

The Evansville native stepped down from the bench last year after 25 years as chief justice, but he has been busy in his retirement.

Shepard became a board member with Justice at Stake, which works to keep courts fair and impartial. He spoke at a news conference in Washington about the release of a Justice at Stake report, The New Politics of Judicial Elections 2011-2012.

The report says special interest groups and political parties spent more than $24 million in state judicial races in the 2011-2012 election cycle – an increase of more than $11 million from four years earlier.

A total of $56.4 million was spent in state high-court races, with a majority of that money going to television ads. Michigan, Wisconsin, Florida and North Carolina had the most expensive judicial elections.

Bert Brandenburg, executive director of Justice at Stake, said the judicial system was created in part to keep conflicts of interest out of the courtroom.

He said that goal “is being worn away steadily a year at a time by a relentless campaign of big money spending and political bullying.”

Marsha Ternus, former Iowa Supreme Court chief justice, describes how large national special interest groups poured money into a campaign against her in a retention election. Ternus and two other justices were voted out of office because of their decision to strike down a same-sex marriage ban. SHFWire photo by Jessica Wray

Former Iowa Supreme Court Chief Justice Marsha Ternus was one of the justices targeted by national special interest groups such as the National Organization for Marriage and other local groups to prevent her retention on the bench. That came after the court struck down Iowa’s gay marriage ban.

Ternus and two of her former colleagues received the 2012 John F. Kennedy Profile in Courage Award after being removed from office because of their unpopular but principled votes.

She said the amount of outside dollars pouring into judicial elections is politicizing the judicial system and creating a hostile environment for judges trying to make impartial decisions.

She said that, in situations like hers, that kind of interest from outside groups can be intimidating for other judges across the country. They’re trying to send a message, she said, to other judges not to vote a certain way or fear political retribution.

States have various ways to choose supreme court justices. Some use different procedures for other courts. Fourteen states, including Kentucky and Georgia, have nonpartisan general elections, but sometimes candidates run with party endorsements. Seven states have contested elections for supreme court justices, when the judges declare a party and run on the party ticket. In Indiana and 16 other states, judges are appointed and later face uncontested retention elections. The remaining states grant life tenure or use a reappointment of some type.

Shepard said taking the financial reins from outside special-interest groups and giving them back to the local committee parties and candidates could reduce some of the extreme hostility and negativity in ads.

“But money finds whatever crevice it can, and flows into groups which are less transparent and less accountable,” Shepard said.

With political parties and candidate committees, Shepard said it’s easier for the public to track where the money is changing hands.

“You know where a party got its money,” he said. “There is a kind of responsibility that flows from being the person who has to say his or her name as party treasurer down at the bottom of the ad.”

Indiana, he said, has for the most part stayed out of the judicial political arena.

“Indiana has had a pretty satisfactory experience with merit selection at the state level and in some of the urban courts,” Shepard said. “We have thus been spared these big-dollar money contests. But that vineyard requires tending; you have to work at that.”

Indiana has a system of merit-based nomination. The governor chooses justices from a list provided by a merit committee. After two years they stand for retention. After that, the justices come up for retention votes every 10 years. The Indiana Supreme Court says justices may not “campaign or solicit public support or campaign funds unless there is organized opposition to their retention.”

Shepard said taking a look at recusal laws could be a good place for states to start reforming their judicial election processes. Those laws allow judges to recuse themselves – or remove themselves from a case – or for other  parties to ask them to do so in cases involving a person or group who supported the judges financially.

The report was put together by the Brennan Center for Justice, Justice at Stake and the National Institute on Money in State Politics.

Reach reporter Jessica Wray at jessica.wray@shns.com or 202-326-9865. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.