Merit-Based Judicial Selection Is Threatened, Here and Throughout the Country

June 8, 2021

Faithful readers of our Justice at Stake series know we’ve chronicled the growing tension between dark money special interests and judicial independence. What started as a drip more than 20 years ago is now a Noah’s Ark flood of spending by mostly (but not exclusively) business and conservative groups to achieve their narrow political goals. By mounting political-style attack campaigns against judges who follow the law rather than a political or religious worldview, these groups are causing real harm to state and federal courts, as research makes so depressingly clear.

The “Gold Standard” Is Under Attack

Conceived in the early 1900s and first implemented in Missouri in 1940, merit-based judicial selection – considered the “gold standard” for selecting state supreme court justices – has been remarkably successful at bouncing politics out of judicial selection in Iowa and the 20 other states where it is used today. But times have changed and super-charged partisan politics has become the norm. While our merit-based judicial selection system is better than all known alternatives, it is not immune to partisan subversion.

In Iowa …

Many mark 2010 and a million-dollar smear campaign directed at three well-qualified Iowa Supreme Court justices for their decision on marriage equality as the opening volley in the new era of partisan attacks on judges standing for retention. Successful in hoodwinking voters in 2010, the same extremist groups were defeated in 2011, 2012, and 2016 despite new rounds of vicious and baseless political attacks.
Then in 2019, as many of you know, Gov. Kim Reynolds and conservatives in the state legislature weakened another merit-based safeguard by tipping the balance on Iowa’s statewide nominating commission in a blatant power grab.

In other merit-based states …

Numerous other narrow-minded interest groups and self-serving politicians have spearheaded similar assaults on merit-based judicial selection systems and retention elections. Recent examples include:

  • Political groups targeted three Florida Supreme Court justices in 2012 for votes on the Affordable Care Act and the death penalty.
  • Tennessee’s lieutenant governor led an effort in 2014 to unseat three justices, hurling inappropriate claims of being “soft on crime” and “anti-business.”
  • Gov. Sam Brownback exploited the retention election of two Kansas Supreme Court justices to win reelection in 2014, using tactics that were called “beyond disgraceful” by a local prosecutor. Then Brownback and his supporters tried to use a series of decisions involving public school funding to jam through a court packing plan in 2016.
  • A group calling itself Citizens for Judicial Fairness was anything but fair in spending $2.2 million this past November on TV ads attacking Illinois Supreme Court Justice Thomas Kilbride, making him the first Supreme Court justice to lose a retention election in state history.
  • This year, the Governor and Republican legislators in Montana are working overtime to eliminate that state’s 50-year-old nominating commission and hand complete control for judicial appointments to the Governor in what one observer called “reverting back to the bad old days.”

Boot politics out of our courts!

Building a Merit Selection System for the 21st Century

Iowa’s merit-based judicial selection system has taken a few direct hits as outlined above. And, scheming politicians and the special interest groups that support them will continue these campaigns for injustice as long as they still work.

Yet, our system has endured, and it will continue to do so if we adhere to the principles established in the Missouri Plan and wisely adopted by Iowa voters in 1962. To prevent any further backsliding, we should restore Iowa’s system back to the “gold standard” by reversing the Governor’s partisan control of the state-wide judicial nominating commission. Our first priority must be to make sure the selection of judges is as impervious to political pressure as possible, regardless of which party holds the Governor’s office.

But we can’t stop there. We must also consider additional measures that will safeguard Iowa’s system from future manipulation and abuse for political gain. Several prominent organizations and legal scholars have proposed added protections for merit-based selection, including a comprehensive plan from the Brennan Center for Justice. These proposals are based on minimizing the role of politics on nominating commissions while insulating retention elections from partisan manipulation.

While some of these ideas won’t make sense for Iowa, leaders from both sides of the political spectrum should think boldly about how to restore and safeguard the principles of the “gold standard” of judicial selection that Iowa voters established in 1962.

Team Justice Not Politics

Protecting the Cornerstone of Justice – Judicial Independence

May 11, 2021

Our ongoing series “Justice at Stake” started with a playbill of sorts to help you discern the intentions of those on either side of a national struggle for what the Framers of the Constitution considered central to our democracy – a fair and impartial court.

First on the stage are those we call the Foot Soldiers, groups dedicated to remaking state courts for narrow business or political interests. Next up are The Funders, those who funnel millions in dark money contributions from corporations and other wealthy special interests directly into the coffers of the Foot Soldiers to target state Supreme Court judges who won’t “toe the line” for their corporate or political agendas.

By all accounts, the Foot Soldiers and the Funders are achieving their Machiavellian goals. Today, one-third of all elected justices now on the bench have withstood at least one $1 million race. Eighty percent of judges said “Yes” when asked if they thought this spending was an effort to shape policy by swaying judicial decisions. The public agrees as well, according to a 2013 poll, when 90% of the respondents said they believe campaign cash affects how a judge rules.

“I never felt so much like a hooker down by the bus station… as I did in a judicial race,” lamented retired Ohio Supreme Court Senior Associate Justice Paul Pfeifer. “Everyone interested in contributing has very specific interests. They mean to be buying a vote.”

But in this tragic drama, we’d like to think “the darkest hour is just before the dawn” thanks to a group we are calling The Heroes. These are the stalwart defenders of fair and impartial courts that, regardless of political persuasion, believe we should choose and evaluate judges based on merit and a fair-minded interpretation of the law rather than big money and partisan politics. We loosely categorize these groups as follows:

  • The Intellectuals
    These national advocacy organizations are dedicated to informing policymakers about the growing threat of money and interest groups on judicial independence. The nonpartisan Brennan Center for Justice leads the pack with extensive research, analysis, and recommendations on how we can safeguard the courts from partisan manipulation.Other national organizations that make fair courts a central part of their mission include the Center for American Progress, the Institute for the Advancement of the American Legal System, the Piper Fund (a JNP supporter), the National Center for State Courts, and the American Bar Association.
  • The Detectives
    Here we have the sleuths of judicial sovereignty, watch dogs that dig deep under the apple-pie facades common to the Foot Soldiers in search of the Funders and their patrons. Taking center stage is from the National Institute on Money in Politics, the online home for a massive database on the dark money contributors to political and judicial campaigns. The Center for Responsive Politics serves a similar role via its website
  • The Citizens Brigade
    Springing to the defense of state courts under attack by the antagonists of justice are members of the Citizens Brigade, which includes yours truly (Justice Not Politics) here in Iowa. JNP was founded in direct response to a million-dollar Foot Soldier campaign by extreme-right religious groups to oust three accomplished Supreme Court justices in the 2010 retention election. Other state-based groups in the Citizens Brigade include Kansans for Fair Courts and Justice Not Politics Alaska (no affiliation to JNP-Iowa) as well as the state chapters of Common Cause and the League of Women Voters.

Intermission Followed by the Final Act
The fight for fair and impartial courts started in America before it was America when the Declaration of Independence called out King George III for attacks on both the judicial branch and individual judges. Today the kings of industry and other special interests are doing the same with unprecedented spending on disinformation campaigns and attack ads against their foes while writing big checks to their allies. Next time, recommendations on how we strengthen protections, here in Iowa and throughout the nation, for what is truly the cornerstone of justice – judicial independence.

Justice Not Politics,
AKA Iowa’s Citizens Brigade

Unpretentious Minnesota courtroom is a powerful reminder of why fair courts matter

April 21, 2021

Yesterday, former Minneapolis police officer Derek Chauvin was convicted on all counts in the murder of George Floyd. The convictions are neither the beginning or the end of a long story of racial struggle in the United States.

Amid the deluge of news coverage, commentary, and public discussion of this trial, it’s worth taking a minute to remind ourselves of why we continue to do our work to advance fair and impartial courts.

Every day, injustices occur. And every day, the human drama plays out in our nation’s criminal courtrooms. Judges and lawyers and jurors sort through the details of those cases. Tales of human frailty and bad decisions, stories of strength and courage – the full range of our lived experiences are on display in those courtrooms.

For the past three weeks, many Americans have watched one courtroom, and they have seen the (sometimes mind-numbingly mundane) process of justice being done. They have seen skilled lawyers making their respective cases, expert witnesses offering detailed information, witnesses offering first-hand perspectives, citizen jurors taking time from their lives to respectfully hear both sides to weigh evidence and reach an informed decision, and an experienced (and merit-selected) judge, Peter Cahill, facilitating a respectful, evenhanded, and thorough process.

This is why our state courts matter. Nearly 84 million cases were considered in state trial courts nationwide in 2018, according to the Court Statistics Project. Approximately 17 million of those were criminal cases (not including traffic cases, domestic relations cases, or juvenile justice cases). Every one of those cases involves real people. A good number of those cases involve heartbreak and sadness and loss. In every criminal case, a person’s liberty is at stake, and the decision may change their life forever. In every criminal case, a victim and their loved ones are seeking to be seen and heard and, to the extent that it is possible, to have wrongdoing recognized and punished.

And in every one of those cases, the people involved should know, unconditionally, that the court will behave with integrity, will honor the dignity and worth of each individual, and will do justice.

The justice system is not perfect. Like so many other systems, it is hard work to make it more perfect. And this is why our work is never done and more vital than ever. State courts are essential to the project of American democracy. A single unpretentious courtroom in Hennepin County, Minnesota is a powerful reminder of this.

The Team at Justice Not Politics

Why Should YOU Care About Pay Raises for Iowa Judges?

April 11, 2021

We’ll answer that question with another question: Wouldn’t you want to know that the Iowa judge you might stand before someday is the best our legal community has to offer?

Let’s say your business is on the line in a contract dispute, for example. Or your financial security depends on the fair resolution of a complicated divorce. Perhaps you were badly injured by a defective product and are asking an Iowa judge to hold a major corporate wrongdoer accountable. Maybe you’ve been unjustly accused of a crime and are depending on a judge to protect your very freedom.

Iowa’s district court judges handle thousands of cases like these every year. Even if you never actually stand before a judge, the Iowa Supreme Court has the final word on issues that affect everyone, including immigration, the death penalty, sex discrimination, reproductive rights, partisan gerrymandering, and the integrity of our elections, just to list a few.

We bring this matter to your attention following a recent guest op-ed for the Des Moines Register by Bob Teig, a former federal prosecutor, who says Iowa judges haven’t made a good case for the 3% pay raise requested by Iowa’s judicial branch in its latest budget proposal. Jeff Schnurr, president of the Iowa State Bar Association, returned volley a few days later with a point-by-point rebuttal of Teig’s essay under the banner headline: Iowa Judges’ Achievements Are Strong Evidence for Higher Pay.

Both authors present well-written arguments bursting with facts and figures about past pay and compensation, caseloads before and after the pandemic, and the number of applicants interested in open seats. However, one number in particular stood out to us – 37.

Mr. Schnurr reports that Iowa ranks 37th in the nation for district court judge salaries, according to the National Center for State Courts. With only three pay raises in the past 10 years, judicial salaries actually decreased from 2010 to 2019 when accounting for inflation. Meanwhile, the number of applicants for district court vacancies has dropped by 56% on average from 2003 to 2020, the number of private practice attorneys applying has fallen almost 50% from 2009 to 2020.

Anyone who has tried to fill a key position in any organization knows that the more applicants you have for the job, the more likely your search will generate outstanding candidates. As we have written here in the past, Iowans can be proud of the exceptional men and women who now serve as judges in our courts. With all that is at stake here, a 3% investment in judicial salaries will continue to yield big returns with highly qualified judges dedicated to fair and impartial courts for all Iowans.

The Team at Justice Not Politics

Dark Money Groups Are “The Crocodile in the Bathtub” of Judicial Elections, Fair Courts

March 29, 2021

When Deep Throat told Bob Woodward to “Just follow the money” in the 1976 movie All the President’s Men as the surest path to uncovering corruption at the White House, he could just as well have been talking about state supreme court elections.

More than a half-billion dollars has been spent over the past 20 years by groups hell-bent on electing or defeating judges that impact their narrow special interests. Thanks to loopholes in state and federal laws – and more recently the cloak of secrecy provided by the U.S. Supreme Court’s Citizens United decision – it is difficult if not impossible for the public to “follow the money” and uncover the funders trying to influence future court decisions.

This is a BIG problem, folks. As pointed out by the nonpartisan Brennan Center for Justice, the leading watchdog in the fight to expose the big spenders in judicial elections, “state supreme courts sit atop judicial systems that hear 95% of all cases filed in the United States.” In just the past few years, state supreme courts had the final word on several major issues, including immigration, the death penalty, sex discrimination, reproductive rights, partisan gerrymandering, and the integrity of our elections.

These decisions affect the rights of workers, access to health care, and product liability. That’s why these powerful interests want to get involved – they have a lot at stake. Spending relatively small amounts of money to change the outcome of a judicial race is a good investment when a single vote can change a major ruling, potentially adding millions or billions to a company’s bottom line. That’s why the U.S. Supreme Court ruled that campaign contributions in a state supreme court race, particularly big spending by a single corporate interest, can violate due process rights.

And while most Americans won’t notice, it would be naive to think those spending millions of dollars on state judicial campaigns and retention elections are not succeeding in their dark-money mission to influence our courts – “institutions that are constitutionally obligated to provide equal justice regardless of wealth, status, or political connections,” states the Brennan Center.

The Judicial Crisis Network, A Funder Case History

Let’s take a look at how this works (or more aptly, doesn’t work) for justice in America. In 2017-18, a group created by the Republican State Leadership Committee (RSLC) called the Judicial Fairness Initiative (JFI) topped all spenders in state judicial races, plunking down $4.1 million to sway supreme court elections in three states. This is a tiny fraction of the RSLC’s total campaign giving, but it can have a huge impact in a state supreme court election.

The conservative Judicial Crisis Network (JCN) funded the RSLC’s 2017-18 influence campaign with a $3.6 million contribution. JCN also gave $255,000 to the Wisconsin Alliance for Reform, a group that supported a Wisconsin Supreme Court candidate with television and radio ads. And JCN spent $500,000 directly to unseat an Arkansas Supreme Court justice.

Thanks to the Brennan Center’s biannual Politics in Judicial Elections series, we know where all this JCN money was spent but we have no idea where it originated. Like eight of the top 10 interest group spenders tracked during the 2017-18 election cycle, JCN does not disclose its donors. According to a 2018 tax filing, JCN received $17 million from “Donor A,” likely the Wellspring Committee, a group notorious for networking millions from deep-pocket donors and other dark money groups into judicial races.

The Crocodile in the Bathtub

Most of the millions flowing into judicial races are spent on the favorite tool for character assassination in political campaigns, extremely negative and twisted advertising. Often these ads are designed to create fear among voters by pillorying judges for a decision in a criminal case, especially those involving violence against children. Crime, however, is rarely the motivating issue for the national funding groups or the state-based special interest groups they support, the Foot Soldiers. Scratch the surface and you’ll often find well-funded business interests and ideological groups that work together to exert influence and sway state judiciaries toward their preferred outcomes.

These attack-dog tactics intimidate sitting judges to the point that it can impact their decisions, especially in criminal cases. Brennan Center researchers cite studies that show judges issued longer sentences and were less likely to rule in favor of criminal defendants as elections heat up. California Supreme Court Justice Otto Kaus described looming elections as “a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”

Iowa’s merit-based system for nominating candidates to our state courts helps insulate us from the worst effects of this flood of special interest influence common to judicial campaigns, but our retention elections are still vulnerable to dark money agendas. We learned this the hard way in 2010 when extreme-right religious groups successfully ousted three accomplished Supreme Court justices under the false flag “Iowans for Freedom.” Led by Bob Vander Plaats, President of The Family Leader, the group raised and spent nearly a million dollars on deceptive advertising, most of it money from groups outside of Iowa.

This is why our work is so important. Iowans must remain vigilant to guarantee equal justice as our current campaign finance systems are not sufficient. Across the country, big money interests have been able to tilt justice in their own favor. And it can happen again here, too. Our best line of defense against this manipulation by the foot soldiers and their funders is to support the watchdogs that are fighting to maintain fair and impartial courts. Next time, we will take a look at the heroes in our Justice at Stake series, the intellectuals, the detectives, and the citizens’ brigade.

Yours for Fair Courts,
Justice Not Politics