Not content with just controlling state legislatures and governors – and having huge influence in Congress – business and its right-wing allies are targeting the states’ supreme courts for takeover too, two new reports and two state judges say.
Key to their drive will be the outcome of three referendums on this November’s ballot, including one in Missouri. And their method is to overwhelm foes with money-fueled vicious campaigns, criticizing justices for upholding defendants’ rights.
“If people can throw enough dollars into judicial races,” the judges who are elected “will project the same ideology or special-interest philosophy” of their corporate sponsors, says Montana Supreme Court Justice James Nelson, whom age limits will push off the bench at the end of this year.
Nelson and former Mississippi Supreme Court Justice Oliver Diaz, whom a business-backed campaign ousted from the court in a subsequent election, discussed the state court takeover at an August 13 Center for American Progress forum, timed with the release of the reports. And because judicial races are normally low-profile to voters, they’re more easily susceptible to money manipulation, the two said.
The business campaign to control state courts is important to workers because a vast majority of all cases they – and their bosses – are involved in are decided in those tribunals. The reports show workers have already suffered some notable losses.
In Wisconsin, right-wing and business groups pumped $3.5 million into a 2011 state Supreme Court justice election – and against the worker-backed candidate. They wanted to ensure that the court would tilt 4-3, should GOP Gov. Scott Walker’s scheme to kill collective bargaining rights ever come before the bench. The right-wing incumbent justice won, the Walker plan came up, the justice voted for it. The report did not say so, but he wrote a caustic opinion against its foes.
Texas oil worker Jose Herrara “was trapped in a safety harness” at his Citgo refinery in Corpus Christi “while 550-degree petroleum poured all over his body for several minutes” on Feb. 22, 2008. He gets workers’ comp, a few thousand dollars a month. But because he was a contract worker – not an employee – Herrara can’t sue Citgo for negligence. In 2007, the Texas Supreme Court, after $700,000 in oil company contributions, had overridden the legislature and let workers like Herrara get workers’ comp, but banned them from suing for pain and suffering. The firms wanted that ban.
Auto insurers and the Chamber of Commerce have pumped so much money – $25 million – into Ohio Supreme Court races since a 1999 ruling against the insurers that from 2003-10, the justices sided with business and against consumers by a 32-4 margin. When Justice Terence O’Donnell voted in cases involving his campaign contributors from business, he sided with them 91 percent of the time.
Michigan insurers and the state GOP spent almost $2 million on ads to win two judicial races in 2008. The court now has a decade-long 5-2 GOP majority and injured workers and consumers can’t get damages. A bipartisan state court task force – which included one of the two 2008 GOP winners – scathingly reported that “Michigan voters already believe campaign spending has infected the decision-making of their judiciary.”
Diaz noted there’s also a spillover effect. He cited what happened to a Supreme Court justice in a Southern state who saw a colleague defeated after a vicious – and inaccurate – campaign charging that the judge let a rapist go free. The observing justice “started voting for the prosecution every time” but still lost his election, Diaz said.
The Missouri, Florida and Arizona referendums this fall are important, the second report says, because the Right Wing is watching the outcomes there for clues on whether, where, and how to expand their court takeover drive in the 2014 election.
The Missouri vote would change the state’s merit selection process for initial nominations to the state’s high court. Now, a non-partisan commission sends nominees to the governor, and the governor chooses one for each seat. The nominee is seated, but must stand for election to a full term at the next general election.
The commission is now headed by the chief justice and includes three lawyers and three citizens with four-year terms. The referendum would remove the justice and replace him “with a fourth, non-attorney member as the tie-breaking vote, enabling the governor to bring his political philosophies to bear before the citizens ever get a say.”
The right-wing-business campaign to take over state courts has already gone so far that not just citizens but even justices themselves have lost faith in the judiciary. “When 50 percent of judges themselves say campaign contributions influence decisions, we’ve got a problem,” added Diaz.
Even the one U.S. Supreme Court case criticizing outside spending in judicial races has limited effect, Nelson said. There, Massey Coal Company – later to be responsible for the fatal Upper Big Branch coal mine blast – spent millions to elect a favorable state Supreme Court justice in West Virginia.
“The High Court said if so much money is spent on a campaign that it affects the outcome, that justice should recuse himself,” Nelson commented. But that’s all, he added.
Photo: The Right Wing was so determined to reverse the Election Night victory last year of liberal JoAnne Kloppenburg to the Wisconsin Supreme Court, that a Republican clerk subsequently “found” bags of missing ballots which, when counted, gave the victory to conservative David Prosser. Mark Hetzburg/AP