Meet James Bopp
January 20, 2012
The left-wing American Prospect has a long profile on James Bopp, a tireless leader in the battle to overturn restrictions on free speech in elections, which typically masquerade as “campaign finance reform.” Bopp is best known for filing the suit that resulted in the landmark Citizens United decision, but he also played a key role in Republican Party of Minnesota v. White – the 2002 U.S. Supreme Court ruling that lifted prohibitions that barred judicial candidates from discussing … well, pretty much anything. While the article tars White and Bopp for “the escalation in money, TV ads, and vitriol in recent judgeship races,” Bopp makes the more compelling, common sense point that it is “quite legitimate for people to want to know and take into account and vote against judges who they believe are not using the right values.”
Here, in a nutshell, you have the difference between proponents of “merit” selection and supporters of judicial democracy. The left-wing “merit” selection crowd believes judges should never deign to explain their reasoning to ordinary voters. Most voters are not sophisticated enough to understand the complexities of judicial reasoning anyway, so judges must be shielded from having their words or opinions become the stuff of “vitriol” or, heaven forbid, a TV ad. Those of us who believe in a more democratic judiciary trust that voters can weigh various sources of information about judicial candidates and separate out the important from the demagogic. We put our faith behind ordinary people in the voting booth, not legal elites who hide behind closed doors to decide who will rule us from the bench.
Although the profile is critical, you can’t help but notice a grudging respect for Bopp’s effectiveness at fighting for his beliefs.
Keep fighting for the people, James!
Citizens United Hysteria Watch, Vol. 1
September 8, 2010
Remember the U.S. Supreme Court’s Citizens United decision? The one that was supposed to generate a tsunami of corporate cash in political races? The one that put a giant “for sale” sign on legislatures, courts and capitals across America? Well, as of September 1, according to a USA Today report not a single company surveyed plans to spend corporate money to run independent ads calling for the election or defeat of any candidate. Zilch. Nada. Zippo.
The National Journal Discovers the Earth is Round
April 12, 2010
The National Journal today reprinted a Justice at Stake press release — oops, I mean, had a very thoughtful piece — about how the Citizens United decision has unleashed a flood of corporate money on state judicial races. The gravamen of the piece is an oft-cited statistic from a still-forthcoming Justice at Stake report which suggests spending on state judicial campaigns more than doubled in the decade from 2000 to 2009 compared to the decade between 1990 and 1999.
As I’ve argued before – Big Deal.
The somewhat boring, less sensational truth is, spending on judicial races merely tracks the overall rise in contributions to other campaigns. In one four-year election cycle alone — never mind a decade — total spending by presidential candidates nearly doubled, from $717 million in 2004 to $1.3 billion in 2008. Barack Obama all by himself spent about $50 million more to win the presidency in 2008 than George W. Bush and John Kerry combined spent in 2004. In 2008, the average winner of a House seat spent $1.37 million — more than double the amount of the average winner a decade ago ($650,000 in 1998).
Actually, Citizens United will probably not alter corporate spending on campaigns all that dramatically. Corporations have always been able to donate. The only difference now is these donations can be used to expressly advocate for a particular candidate, rather than going right up to the edge with issue ads. Any increase in corporate political spending is likely to be dwarfed by the trial bar and trade unions – two groups whose future prosperity is so dependent on their ability to pull the levers of government power.
What’s the Best Way to Educate Voters?
April 7, 2010
“The root of the problem,” former U.S. Supreme Court Justice Sandra Day O’Connor recently told a group of Pomona College students, “is ignorance about the role of the judiciary. The long-term solution to that problem is education….And in order to do this we need to bring real and meaningful civics education back into our classrooms…” (Audio of speech available here).
Hey, I’m all for teaching “meaningful civics education” in our schools, rather than the drivel that too often passes for history (excuse me, Social Studies) in today’s classrooms. But there is another very powerful tool our democracy’s Founders devised to overcome voter “ignorance” – to use Justice O’Connor’s harsh phrase. That tool is called an election.
Elections educate voters about the ideas that animate our public servants. They help us discern what character traits our public officials bring to their high offices. They ensure that every interested voter has access to the information he/she needs to make informed choices.
Unfortunately, Justice O’Connor opposes elections – at least when it comes to choosing who controls our state judiciaries. Instead, she supports a system where a tiny handful of elites, rather than millions of voters, meet in secret to determine who is worthy to hold some of the most powerful jobs in government. This group of elites is unelected and unaccountable, with no obligation to explain its reasoning to ordinary citizens, but instead simply emerges from its Mt. Sinai with tablets inscribed with the list of names of our judges, leaving the rest of us to gawk and wonder at their magnificence.
Can anyone seriously believe that this so-called “merit” selection system is a better way to educate voters than democratic elections?
Judicial Selection: What Does it Mean to have Judges “Answerable to the Law”?
April 6, 2010
Adam Skaggs of the Brennan Center has an article in The New Republic bemoaning the influence of campaign cash in judicial races and predicting a post-Citizens United arms race of special interest spending.
Skaggs rehashes the usual poll numbers about public concern over the perception that campaign contributions influence judicial decisions. He fails to mention, however, that despite these concerns, 75% of Americans believe state Supreme Court justices should be elected, according to a 2008 poll by the American Justice Partnership Foundation (full disclosure: I’m president of the AJP). He also ignored a recent letter by William Weisenberg of the American Bar Association, who took sharp issue with the notion that widespread judicial elections mean that justice is “for sale” in the U.S., condemning this notion as “impugning the integrity of our court system and the thousands of men and women who daily don their robes and administer justice in a fair and impartial manner.”
Between 2000 and 2008 (the latest year for which data is available), the Brennan Center raked in more than $10 million from George Soros’ Open Society Institute, so it’s no surprise the group recycles the typical Justice at Stake boilerplate. But at the very end of the piece, Skaggs dips his toe into what I believe should become a really interesting debate – namely, exactly to whom are judges really accountable?
For those of us on the side of democratic judicial elections, the answer is quite easy: Judges, like every other public servant in America’s democracy, must ultimately be accountable to the people. Skaggs believes this is wrong:
“Unlike legislators and executive officials, who are expected to act in accordance with the interests of their constituents, judges don’t ‘represent’ anyone; they are answerable to the law, not to special interests that can cut the biggest campaign checks.”
Forget that last straw man – no thinking person believes judges should be accountable to the writers of the “biggest campaign checks.” The interesting thing here is the notion that judges “are answerable to the law.” A retired judge made the same point, which I blogged on last month, arguing that judges are “accountable to the Constitution and the rule of law.”
Both Skaggs and the judge seemed to believe this settles the question, but really it doesn’t. How exactly can “the law” hold judges accountable? If a judge exceeds her authority (as judges routinely do these days), how can “the law” force her to retreat to her proper role? If a judge makes a series of arbitrary, capricious decisions, how can “the law” replace that judge? How can “the law” decide whether a judge has fulfilled his oath?
Every top government official swears a duty to uphold “the law,” but someone has to determine whether they have fulfilled that responsibility. As I’ve written before, in a democracy, that someone is the voters. Saying judges should not be accountable to the people, but only to what their own conscience suggests “the law” demands is the same as saying they are accountable to no one.
Ten Years Worth of Spending on Judicial Campaigns = 4 Months Interest For George Soros
March 19, 2010
Justice at Stake – the political organization funded by hedge fund titan George Soros (net worth $13 billion) – will soon issue a study that says state judicial candidates raised $206 million over the past decade, which is more than double the $83 million raised in the 1990s. Sounds ominous – until you consider what has happened in other major elections. Here are a few tidbits, courtesy of the invaluable people at the Center for Responsive Politics and their website opensecrets.org:
- In 2008, Barack Obama raised more than $745 million – about $50 million more than George W. Bush and John Kerry raised in 2004 combined.
- The $3.16 billion spent on the three presidential elections in this decade (2000, 2004, 2008) is nearly triple the $1.08 billion spent on the three previous elections (1996, 1992, 1998) and nearly double the $1.6 billion spent on the last six presidential elections dating back to 1976.
- Barack Obama himself spent nearly as much to win the presidency in 2008 as all candidates did in the two presidential elections of the 1990s.
- In 2008, the average winner of a House seat spent $1.37 million – more than double the amount of the average winner a decade ago ($650,000 in 1998).
- The total amount Americans contributed to judicial candidates over the entire last decade represents about 4 months worth of interest on George Soros’ fortune. That’s not from opensecrets.org – I did the calculation myself; $13 billion at 4.59% interest (current 30-year T-bill rate).
Ramped up spending on judicial elections isn’t “a grave and growing challenge” to our courts, it’s merely mirroring the spending increases in other races. To put it in perspective, the $5.3 billion Americans contributed to all federal candidates in 2008 represents about one-third of what we’ve spent on bottled water.
Another AHA! Moment
March 4, 2010
Last week I posted an item on Bill Moyers’ PBS rant about Citizens United, calling out the lack of any proof behind his hysterical assertion that there’s now a “crooked sign hanging on every courthouse in America reading ‘Justice for Sale.’” The Gavel Grabbers swooned, but also offered no proof to back up Moyers’ absurd assertion.
Well it seems I have an ally from an unlikely source: The American Bar Association.
In a letter posted on Gavel Grab yesterday, William Weisenberg, chairman of the ABA’s Standing Committee on Judicial Independence, writes that he “strongly disagree[s]” with Moyers’ statement and that he “view[s] this characterization of our Courts as impugning the integrity of our court system and the thousands of men and women who daily don their robes and administer justice in a fair and impartial manner.”
Picking apart Moyers was easy game for Weisenberg, but his next paragraph left me speechless:
“Our partners share the view, demonstrated in polling, that there is a serious ‘perception’ [his quotes] that financial support influences judicial decision-making. It is one thing to address the perception that you, JAS [Justice at Stake], our partners, and the ABA speak to often in our quest to drive money out of judicial selection. It is another thing to speak in terms of justice for sale as if it were a common thing.”
Now, you’re probably thinking … you lost your breath over THAT?
But what we have here is an admission from one of the High Priests of the movement that the whole gavel grabbing, multi-million dollar, “merit” selection campaign is based entirely on thin air – on a “perception” – not on any real, provable evidence that judges in mass numbers are selling their votes for cash. Justice in America is not “for sale” – it’s not even “at stake.”
Which raises two interesting questions:
- Wouldn’t it be better for Justice at Stake to spend George Soros’ hedge fund millions to dispel the false “perception” that justice is for sale?
- Will William Weisenberg write another letter to former U.S. Supreme Court Justice Sandra Day O’Connor rebutting her assertion that elected judges cannot “dispense law without prejudice?”
Bill Moyers Comes Out Against the First Amendment
February 26, 2010
That great ultra-liberal windbag Bill Moyers slammed the U.S. Supreme Court’s Citizens United decision, which that found that corporations have First Amendment rights to free speech and that Congress cannot use its power to muzzle speech it finds inconvenient during election time. (I didn’t watch the Bill Moyers Journal broadcast on PBS myself, but Billionaires Against Elections - aka Justice at Stake - summarized the lowlights on Gavel Grab.)
Moyers frets that the ruling “greatly expands corporate power over our politics” and “that corporate muscle just got a big hypodermic full of steroids.” Between bouts of such bloviating, he enlisted legal scholar/analyst/pooh-bah Jeffrey Toobin, who said the answer to this decision was - you guessed it - “merit” selection:
“When you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.”
Toobin offered no evidence to support this condemnation of democracy, or if he did, the folks who want to Grab the Gavel from the American people chose not to report it.
The truth is, Citizens United will probably not alter corporate spending on campaigns all that dramatically. Corporations have always been able to donate. The only difference now is these donations can be used to expressly advocate for a particular candidate, rather than going right up to the edge with issue ads. Any increase in corporate political spending is likely to be dwarfed by the trial bar and trade unions – two groups whose future prosperity is so dependent on their ability to pull the levers of government power.
In any event, Moyers himself had no concrete proof of any vast corporate conspiracy, other than a mysterious reference to a “very rich oilman” who paid $300,000 “to get a moment of President Clinton’s ear.” Did this fat cat get anything in return? I guess we’ll have to wait until the next episode.