In Politicizing the Courts, We’re Buying and Selling Justice

The brouhaha raised over the nomination of Judge Robert H. Bork to the Supreme Court offers object lessons for political scientists to mull over for years to come.

The most startling dimension of the contest, however, was the battle for public opinion. Both sides recognized that the ultimate judgments that would sway undecided senators were the ones reported by Gallup and Roper, and both sides invested huge sums of money in “public relations” campaigns to sway public opinion.

Unlike regular political campaigns, which require record-keeping and reporting of contributions and expenditures, a public relations campaign can be managed with little public scrutiny. It does not take an astute observer to see the parallels between the fight over Bork’s nomination and the brawls over Supreme Court elections in many states last year. Those who spend money to influence public policy are realizing that a lot of the policy they want to influence is made by Supreme Court justices, and it takes a lot less money to affect the selection of justices than it does to elect legislators, governors or a President.

In 1986 state after state saw the infusion of enormous amounts of money into Supreme Court contests, regardless of what form those contests took.

Nine states, nearly all in the South, still utilize contested partisan elections in which political parties nominate candidates for Supreme Court seats. Supreme Court races have taken on all the trappings of gubernatorial contests in many of these states. From 1982 to 1986 the average amount of campaign contributions collected by successful Texas Supreme Court candidates increased 219%, from $272,189 to $868,604. In 1986 contributors included Texaco, which gave $72,700 to five justices, and Pennzoil, which gave $315,000 to the same five. The Texaco-Pennzoil dispute is still pending before the Texas Supreme Court.

Thirteen states utilize “nonpartisan” elections, in which candidates can run against incumbent justices. The contests frequently assume a very partisan cast. Last year in Ohio $2.7 million was spent in a hotly contested race for chief justice between an incumbent who was well known as a Democrat and his Republican challenger. The Republican won, and promptly voted to grant rehearings in 30 cases decided in the final weeks of his predecessor’s term. After news reports disclosed that he had received campaign contributions from lawyers in five of those cases, he disqualified himself from further participation.

Fifteen states utilize the “yes-no” retention election system that we use in California. Here, of course, the national record was set in 1986, with a total of $11.4 million being spent by the two sides in the successful campaign to unseat Chief Justice Rose Bird and Associate Justices Cruz Reynoso and Joseph Grodin. Heated campaigns took place in other retention states as well. In Oklahoma a well-financed effort by death penalty advocates nearly removed a justice of the Court of Criminal Appeals.

The wide margins of safety enjoyed by justices in states utilizing retention elections are quickly eroding. Twenty years ago 92.9% of judges on retention ballots were retained by a margin of 80% or more. By 1984 that proportion had dropped to 26.4%. Here in California, the 21 justices who faced the voters from 1942 to 1962 received an average affirmative vote of 90%. Without even including Rose Bird, the 15 other justices who faced the voters from 1970-1982 averaged an affirmative vote of 69%.

The average level of support is now low enough that one unpopular decision can make any justice vulnerable. Consider what happened to Chief Justice Roger Traynor in 1966. Because he joined an opinion striking down Proposition 14, which permitted racial discrimination in the rental and sale of property, Traynor was retained by a vote of 65% that year. Four years earlier, as an associate justice, he had been retained by a 90% margin.

Even if you’re starting with the margins of 78% to 79% that Chief Justice Malcolm M. Lucas and Justice Edward A. Panelli racked up last year, a similar drop of 25% could turn a routine confirmation into a potential rout.

The prospect of justices having to organize campaigns and solicit contributions every time they offend enough special interest groups to face the prospect of a contested election is a disconcerting one. As the Bork contest suggests, no method of selection can totally insulate justices from the political maelstrom.

But we should be searching for ways to minimize the intrusion. Just giving every California justice a full 12-year term would be a substantial improvement. Currently, because of a historical anomaly, they are initially selected only to fill the term of their predecessors. Thus, California justices occasionally face the voters more frequently than some legislators. In 1990 at least five (including Lucas and Panelli) will again be on the ballot.

As the late Jesse Unruh put it, “Money is the mother’s milk of politics.” The politicization of Supreme Court races can only mean we’ll find more of the sucklings wearing black robes. Those who lack the appetite will simply retire from the bench. Either way, we lose.