Sustained Outrage

Former Bush lawyer: Real Republicans Don’t Filibuster

As Politico.com and others reported last week, there appears to be some movement — or at least discussion of possible movement — on many of the 38 judicial nominees currently awaiting confirmation votes in the full Senate. In the rumored deal between Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), Democrats would have to agree to send four nominees back to the president in exchange for Republicans agreeing to confirm up to 19 non-controversial candidates.

But is a last-minute deal, with time running out before the new Congress takes office in January and forces President Obama to re-submit all of his pending nominees, really the only way to fill any vacancies? (The Senate hasn’t confirmed a federal judge since September.)

No, according to a rather unlikely source: Richard Painter, former associate counsel to President George W. Bush. In a Dec. 9 Huffington Post piece, Real Republicans Don’t Filibuster, Painter revisited public statements made by GOP senators during the previous administration that decried the use of filibusters to block President Bush’s nominees. They were right then, and they’re still right, he maintained.

For the reasons stated by these leading Republican senators, filibustering judicial nominees is wrong. Moreover, the lame duck session does not provide Republicans any excuse for suspending this principle. Since 1933, when the 20th Amendment set January 3 as the date for congressional turnover, there have been 70 lame duck judicial confirmations; 64 were of Republican nominees, and 15 occurred after Republicans lost seats in the Senate. Moreover, the recent elections focused on jobs and the economy, not judges. Republicans have no midterm mandate to block qualified nominees.

Sticking to principle is not only the right thing to do; it is also good politics for Republicans. First, the public shares the view that the filibuster is wrong. It is one thing to vote no; it is another to prevent other people from voting because they might vote yes.

Second, if Senators support a filibuster after denouncing them, it would be hard for anyone to trust what they say again. Their past opposition to filibusters would be seen as mere partisan politics. Voters respect politicians with principle; they are tired of hypocrisy.

Third, what goes around comes around. Someday Republicans will again control the White House and Senate, as they did for much of President Bush’s two terms. When a Republican President nominates conservatives to the federal bench, Democrats will look for an excuse to prevent a Senate vote. Republican Senators who filibuster now give Democrats an excuse to filibuster later.

The result could be a devastating set-back for Republicans, whose successes in putting conservatives on the bench have historically outpaced Democratic successes in getting liberals confirmed. Consider, for example, the well-known conservatives among successful Bush nominees: John Roberts, Samuel Alito, Priscilla Owen, Janice Rogers Brown, Brett Kavanaugh, Mike McConnell, and Jeff Sutton, to name a few. The failed nomination of Miguel Estrada was the exception rather than the rule. Democrats justified their obstruction then by pointing to Republican efforts to block President Clinton’s nominees, including Richard Paez, whose four-year confirmation battle was the longest ever for a circuit court nominee.

Republicans’ hard-fought battle during the Bush Administration to move away from this “tit-for-tat” toward an effective confirmation process would be lost if Democrats are now given an excuse to block future Republican nominees. Republican Senators could never again with a straight face say that filibusters are wrong. In confirmation politics, two wrongs don’t make a right; they just beget more wrongs.

Fourth, there is no compelling reason to vote against President Obama’s nominees, much less to prevent a vote on them. The nominee we hear about most often — Goodwin Liu — is mischaracterized as a radical liberal (perhaps because he teaches law at Berkeley or because he has written about how the law affects minority groups). Liu’s record, however, puts him well within the legal mainstream, and he has emphasized objectives shared by conservatives such as fixing substandard public schools and allowing parents more school choice. Moreover, his qualifications earned him the highest rating from the American Bar Association as well as endorsements from conservatives such as Ken Starr, Clint Bolick, and John Yoo. He would fill a “judicial emergency” seat that has been vacant more than 675 days.

If Liu’s nomination is the best President Obama can do to infuriate the right, the President is not trying very hard. Diatribes against Liu fill air time on talk radio but have nothing to do with the kind of judge he would likely be. Blocking him or any of the 22 other Obama nominees now awaiting a vote is not worth abandoning the principle that Republican Senators have been acclaiming for years: Senators should vote their conscience on judicial nominees, but they should vote.

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Sen. Hagan: Confirm Diaz before lame duck session ends

The Senate Judiciary Committee approved four more nominees for federal judgeships yesterday at its executive business meeting, bringing the total of candidates awaiting up-and-down votes from the full Senate to 38. (Robert N. Chatigny, up for a spot on the U.S. Court of Appeals for the 2nd Circuit, was held over.)

The Senate hasn’t confirmed a federal judge since Sept. 13, and time is running out on the current session. On Wednesday, Sen. Kay Hagan (D-N.C.) published an op-ed in the Herald Sun, calling on the Senate to confirm North Carolina Judge Albert Diaz to a seat on the 4th Circuit before his nomination expires when this session of Congress adjourns.

North Carolina is the largest and fastest-growing state in the 4th Circuit, but we have been historically underrepresented on this critical court. Since its establishment in 1891, only eight North Carolina judges have served on the court — the same number as the smallest state in the circuit, West Virginia.

One of my priorities has been to increase North Carolina’s representation on the 4th Circuit. After many months of working with the White House, it was a terrific victory for North Carolina when the president nominated Diaz and Judge Jim Wynn to the court. Wynn was confirmed in August, but Diaz still hasn’t had an up-or-down vote.

The 4th Circuit is the last stop for almost all federal cases in the region, and we need to have the court at full strength. Because of its longstanding vacancies, the Administrative Office of the U.S. Courts considers the 4th Circuit a “judicial emergency.” This negatively impacts appellate justice for North Carolinians. This bench provides the fewest oral arguments and published opinions in the country.

The delay for judicial nominees is unprecedented. By Dec. 8, 2002, during the Bush Administration, the Senate had confirmed 100 judicial nominees. But as of today, the Senate has confirmed just 41 judicial nominees. During the first two years of the previous administration, it took an average of 26 days for a circuit court nominee to be confirmed after being approved by the Judiciary Committee. Since President Obama took office, it has taken an average of 133 days. And Diaz has been waiting 314 days since the committee approved him 19-0. This is totally unacceptable.

Despite bipartisan support for his nomination, Republican leaders have objected to scheduling an up-or-down vote on his nomination. These objections have nothing to do with Diaz’s qualifications and everything to do with partisan gamesmanship.

Diaz’s and Eagles’ nominations will expire if the Senate does not vote on them before the 111th Congress adjourns. I will continue fighting to see that they are confirmed. North Carolina deserves better than the gridlock that has thus far prevented an up-or-down vote on these two extremely well-qualified nominees.

There are currently 109 judicial vacancies, 51 designated as judicial emergencies by the Administrative Office of U.S. Courts.

Do Sens. Reid and McConnell read their mail?

On Friday, Ashley L. Belleau, president of the Federal Bar Association, wrote a letter to Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), urging the leaders to take action, at the very least, on the 17 candidates awaiting confirmation votes from the full Senate who passed out of the Judiciary Committee “by unanimous consent or without controversy.” This includes Albert Diaz, a North Carolina judge who was nominated by President Obama last November for a seat on the U.S. Court of Appeals for the 4th Circuit that has been vacant for 1240 days and has been declared a “judicial emergency” by the Administrative Office of the Courts.

Belleau gets right to it:

I write on behalf of the approximately sixteen thousand members of the Federal Bar Association (FBA) to encourage expedient Senate floor action on the judicial candidates reported out of the Senate Judiciary Committee and awaiting a Senate floor vote. As the Senate reconvenes, there is a very real need – in the interest of our federal court system — for the Senate to fulfill its constitutional responsibility to vote on these pending nominees.

The FBA is the foremost national association of private and public attorneys engaged in the practice of law before the federal courts and federal agencies. We seek the fair and swift administration of justice for all litigants in the federal courts. We want to assure that the federal courts are operating at their full, authorized capacity and that justice is timely delivered by the federal courts. The large number of judicial vacancies prevents the prompt and timely administration of justice in the federal courts. This is causing unnecessary hardship and increased costs on individuals and businesses with lawsuits pending in the federal courts.

Our Association’s interest is focused upon prompt, dispositive action by the Senate in filling vacancies as they arise on the federal bench. Prompt, dispositive action by the Senate on judicial candidates will assure that lawsuits filed in our federal courts are heard and decided without delay. The justice system suffers when vacancies are not filled in a timely manner. Vacancies create a burden of added litigation and economic costs that at times overwhelm the system and its ability to hear and decide matters in a timely and effective manner.

Seventeen of the 23 federal judicial candidates who await a Senate floor vote have been approved by the Senate Judiciary Committee by unanimous consent or without controversy. These candidates deserve an up-or-down vote before the 111th Congress reaches an end.

Remember, Belleau’s letter comes on the heels of last week’s letter from members of the 9th Circuit as well as Chief District Judges within the circuit, begging requesting Reid and McConnell to take action on judicial vacancies. Belleau continues:

The Federal Bar Association as a matter of policy takes no position on the credentials or qualifications of specific nominees to the federal bench. The FBA’s foremost interest lies in the assurance of prompt, dispositive action by the President in nominating qualified federal judicial candidates and the Senate in either confirming or not confirming them in a prompt manner. Such action will ultimately reduce the number of vacancies to a more tolerable level.

The Federal Bar Association firmly believes that all judicial candidates, once cleared by the Senate Judiciary Committee, deserve a prompt up-or-down vote by the Senate. Swift action is particularly needed on those candidates associated with federal circuit and district courts whose caseloads are in emergency status. We urge the Senate to vote upon these pending nominees before the end of the current legislative session.

Thank you for your support of the nation’s federal court system and your consideration of our views.

The Washington Post weighed in on Saturday with an editorial that echoed Belleau’s letter.

In all, 23 of Mr. Obama’s nominees are awaiting a Senate floor vote; 16 of them received unanimous approval from the Judiciary Committee and the vast majority were deemed “well qualified” by the American Bar Association. Eight – including the three mentioned above – have been tapped for seats designated “judicial emergencies” because of the length of the vacancy and the workload of the court.

There is plenty of blame to go around for the delays, starting with the president, who has been slow and often late in sending up names. The White House has also been timid in fighting for nominees. Senate Majority Leader Harry M. Reid (D-Nev.) has not been assertive in scheduling floor votes, and the push by some interest groups to win confirmation for liberal favorites such as controversial 9th Circuit pick Goodwin Liu may be holding up progress on the broader slate of more moderate nominees. Republicans, including Minority Leader Mitch McConnell (Ky.), have been all too eager to object to votes even on nominees with bipartisan support. The stall tactics are undoubtedly payback for Democratic filibusters of controversial but highly qualified nominees of President George W. Bush. The difference today is that even nominees without a whiff of opposition are being blocked.

Presidents deserve significant deference in judicial nominations, and every nominee deserves an up-or-down vote. But the hold-up of nominees who have garnered unanimous, bipartisan support is particularly offensive. These nominees should confirmed swiftly before Congress recesses next month.

There don’t seem to be any consent agreements on the next Executive Calendar (for Nov. 29), so it doesn’t look like any confirmation votes are imminent. Maybe Sens. Reid and McConnell can use the Thanksgiving break to catch up on some of their unread mail.

Judicial vacancies and the lame duck session

There’s been a growing chorus of voices calling upon the U.S. Senate to take action on the more than 100 vacancies in the federal judiciary during the lame duck session. In terms of knowing how the federal justice system works, some of these folks are pretty credible as experts.

On Thursday, former judges Abner J. Mikva (a Carter appointee) and Timothy K. Lewis (a Bush I appointee) published a joint opinion piece on Politico.com. After noting that almost almost one out of every eight federal judgeships is currently vacant, with that number likely to increase due to upcoming retirements, the jurists wrote:

As federal judges appointed by presidents from different parties, we urge the Senate to end the excessive politicization of the confirmation process that is creating these delays.

This obstruction and the way it undermines our democratic process would be outrageous at any time. But it is especially shameful now, because many of these qualified nominees received bipartisan support when nominated and were then approved by the Senate Judiciary Committee with broad support. Yet they have waited more than a year to be confirmed because the Senate never put their nomination to a vote.

Instead of confirming these nominees, some senators have used secret holds and filibusters to block the votes, leaving nominees in limbo for a year or more and undermining the credibility of our judiciary. Fewer nominees have been confirmed during the Obama administration than at any time since President Richard Nixon was in office.

These tactics are, as one senator noted, “delay for delay’s sake.” They are creating an unprecedented shortfall of judicial confirmations and, ultimately, a shortage of judges available to hear cases. For many Americans, this means justice is likely to be unnecessarily delayed — and often denied.

The op-ed continues:

With the Senate now back for the lame-duck session, political pressure on nominations may not be so intense. This is the time for the Senate to return to an effective process for confirming judges — one that can eliminate the appearance of excessive partisanship and apply to both Democratic and Republican administrations.

Only in this way can we begin to restore the public’s faith in the integrity of our judiciary, a crucial element of our Constitution’s delicate system of checks and balances and fundamental to our democratic system of government.

On Monday, six members of the U.S. Court of Appeals for the 9th Circuit, including Chief Judge Alex Kozinski, (as well as chief judges in all of the Circuit’s 13 U.S. Districts, plus the chief judge of the District of Guam) sent a letter to Senate Majority Leader Harry Reid (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), Judiciary Chairman Patrick Leahy (D-Vt.) and Ranking Member Jeff Sessions (R-Ala.).

It’s a short letter, so here it is in its entirety:

Gentlemen:

We write on behalf of the courts of the Ninth Circuit. As you know, the Ninth Circuit is by far the largest federal circuit in the country, encompassing the 9 western states, plus the territory of Guam and the Commonwealth of the Northern Mariana Islands. Approximately one fifth of the population of the United States lives within the borders of the Ninth Circuit. Our case-load reflects the diversity of our territory and the people that inhabit it and is heavily impacted by increased immigration enforcement, drug interdiction activities, prison litigation, bankruptcy and environmental cases–to name just a few of the most active areas.

In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission. While there are many areas of serious need, we write today to emphasize our desperate need for judges. Our need in that regard has been amply documented (See attached March 2009 Judicial Conference Recommendations for Additional Judgeships). Courts cannot do their work if authorized judicial positions remain vacant.

While we could certainly use more judges, and hope that Congress will soon approve the additional judgeships requested by the Judicial Conference, we would be greatly assisted if our judicial vacancies–some of which have been open for several years and declared “judicial emergencies”–were to be filled promptly. We respectfully request that the Senate act on judicial nominees without delay.

So now it’s not just court-watchers, academics and talking heads urging the Senate to take action from the sidelines. It’s current and former judges essentially begging the upper legislative body to send them some help, because the empty seats on the bench are eroding the quality of justice in our courts.

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A silver lining on judicial confirmations?

Writing for Talking Points Memo, Brian Beutler thinks that Republicans taking control of the House could have a positive impact on President Obama’s nominees.

Beutler suggests that without much legislation coming out of the House to occupy the Senate’s time, Senate Majority Leader Harry Reid (D-Nev.) can schedule votes for pending candidates for federal judgeships and administration posts.

[W]hile the House passes legislation the Senate has no interest in considering, Majority Leader Harry Reid will have much more time, if he chooses, to devote to confirming a large backlog of Obama’s judicial and executive branch nominees — particularly numerous non-controversial picks, who will have to be renominated next year.

That’s certainly what advocates would like to see.

“Reid should concentrate Floor time on must pass bills, message and other votes that highlight differences and important matters that are or should be non-controversial, including confirming lifetime federal judges,” Glenn Sugameli, an advocate for swift judicial confirmations, tells TPM. “All of Obama’s nominees to circuit and district courts have had the support of their home-state Republican and Democratic senators and the vast majority have been non-controversial nominees who have been approved by the Judiciary Committee without objection and approved unanimously when they finally receive usually long-delayed Floor votes.”

“If one or more Republican senators force cloture votes on consensus nominees, they will accurately be seen as mindlessly obstructionist,” Sugameli says. “If they do not, nominees will be confirmed quickly.”

However, scheduling and holding floor votes still takes time, and there don’t seem to be any indications that GOP senators will any more accommodating with a 47-seat minority than they were with a 41-seat minority. The TPM piece continues:

That’s not to say that scores of judicial vacancies will be filled immediately, or that President Obama will (finally) see his executive branch fully staffed. Democrats will have a much smaller majority of 53 Senators, and any single Republican will be able to force Democrats to round up 60 votes and spend nearly a week of floor time to get a nominee confirmed.

“I would remind you that actions have consequences and we’re going to have to deal with what the House sends us and, at the other end, it’s three days plus [per filibuster] and all the days add up,” says Reid spokesman Jim Manley.

But one of the biggest hurdles nominees faced this year was a thick legislative agenda: they were literally crowded out by the sheer volume of routine, emergency, and history-making legislation. Next year that won’t be an issue. And that has some advocates seeing a silver lining around the midterm election results.

Hmm. I may be a big fan of Monty Python, but I don’t think I’m ready to start singing along just yet, particularly given that Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, just published this call for the restoration of bipartisanship and civility on Politico.com.

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Senate Judiciary Committee schedules hearings on nominees

This just in: the Senate Judiciary Committee announced today that 12 judicial nominees are on the agenda for the committee’s next business meeting on Nov. 18. It also scheduled a separate hearing for Nov. 17 that includes a panel of four judicial candidates who have not yet appeared before the committee.

Assuming the committee approves all 12 nominees on Thursday — and that’s a pretty big assumption — that would put the number of nominees for circuit courts awaiting full senate approval at 9 (for 20 vacancies) and for district courts at 25 (for 86 vacancies). Let’s not forget that 50 of those 106 vacancies have been declared judicial emergencies by the Administrative Office of the U.S. Courts.

Of course, there are no consent agreements on Friday’s Senate agenda, so no movement yet on actually confirming any of the pending nominees during the so-called lame-duck session before the 112th Congress takes office in January. The Alliance for Justice has urged the full Senate to take up the nominations that have passed out of the Judiciary Committee during the lame-duck session:

In addition to being desperately needed and largely uncontroversial, these nominees represent the hope of creating a federal judiciary that is representative of our nation’s demographic diversity. Thirteen of the pending nominees are people of color and 10 are women. Many would be historic “firsts” in their respective courts if confirmed to the bench.

Though these nominees have been awaiting votes for far too long, lame-duck sessions have frequently been an occasion when judicial nominees are approved. For instance, during the 2002 lame-duck session in a closely split Senate, President George W. Bush had 20 nominees confirmed, all but one on a voice vote, including controversial circuit court nominee Michael McConnell.

According to AFJ President Nan Aron, “These historic levels of obstruction have serious consequences for American courts. The Senate needs to put aside partisan rancor, perform the task the Constitution has assigned to it, and confirm these qualified, diverse judges to the federal bench. It would be an unforgiveable tragedy if obstructionism during the lame-duck Congress helped create a lame-duck judiciary.”

(AP Photo/Charles Dharapak)

Elections have consequences, politicians like to remind us, usually after a big win. Within that simple phrase lies an implicit threat to those who find themselves outside looking in at the corridors of power: You’re going to need to get used to a new way of doing business.

Last week’s election saw Republicans retake control of the U.S. House of Representatives, and although they made inroads in the Senate, Republicans fell short of achieving a 51-vote majority. Thanks in part to Joe Manchin’s victory in West Virginia, Democrats still hold 53 seats in the Senate (including two independents who caucus with the Dems).

So what effect will the election have on President Obama’s judicial nominees?

The short answer: Probably not much.

Democrats had already lost their 60-seat super majority that, at least in theory, enabled them to easily overcome any threat of a GOP filibuster. Over the past two years, Republicans have proved very adept at preventing nominees from getting up and down votes, as have Democrats in the past when they were in the minority.

Just before the election, President Obama once again made reconciliatory overtures at Congressional Republicans in his weekly address. Obama was specifically calling on leaders to focus on the economy as the main issue confronting Americans, but I think his remarks can apply as well to confirming nominees.

On these issues – issues that will determine our success or failure in this new century – I believe it’s the fundamental responsibility of all who hold elective office to seek out common ground.  It may not always be easy to find agreement; at times we’ll have legitimate philosophical differences.  And it may not always be the best politics.  But it is the right thing to do for our country.

That’s why I found the recent comments by the top two Republican in Congress so troubling.  The Republican leader of the House actually said that “this is not the time for compromise.”  And the Republican leader of the Senate said his main goal after this election is simply to win the next one.

I know that we’re in the final days of a campaign.  So it’s not surprising that we’re seeing this heated rhetoric.  That’s politics.  But when the ballots are cast and the voting is done, we need to put this kind of partisanship aside – win, lose, or draw.

In the end, it comes down to a simple choice.  We can spend the next two years arguing with one another, trapped in stale debates, mired in gridlock, unable to make progress in solving the serious problems facing our country.

A lot of people, including the Federal Bar Association, would put the more than 100 vacancies in the federal judiciary among the serious problems facing our country.

So would Bloomberg’s Ann Woolner, who wrote in a column published earlier this week that said that Republican gains in the Senate would make it easier for the GOP to block Obama’s nominees:

Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

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Money vs. incumbency: Advantage money

Right around the primary, I wrote about a study by the National Institute on Money in State Politics called The Role of Money and Incumbency in 2007-2008 State Elections. That study concluded that when an incumbent also enjoyed a fundraising advantage, they won 96 percent of the time. That’s a pretty big hurdle for challengers to overcome.

But what happens when the money advantage changes sides?

Thanks to the U.S. Supreme Court’s Citizens United decision, third parties can now spend money on behalf of candidates without limit, and without having to disclose the true origin of the money. (You can read previous coverage here.) And spend they did, as this report, Outside Job, from Public Citizen points out.

In the 2010 general election, where a Congressional seat was not won by the party that previously held it, third parties spent more on the winner than on the loser 78 percent of the time.

Winning candidates in elections in which power changed hands were aided by average spending of $764,326 by independent groups, while losing candidates were aided by average spending of $273,268, a ratio of nearly 2.8 to 1. The analysis deemed outside spending as aiding candidates if it either praised them or criticized their opponents. It does not include outside spending for primaries.

To be clear, not all of the elections cited involved an incumbent. For example, in West Virginia’s 1st Congressional District, incumbent Democrat Rep. Alan Mollohan lost in the primary, so the contest between Republican David McKinley and Democrat Mike Oliverio was for an open seat. The study includes the race because the seat changed hands as McKinley, aided by $931,700 in outside spending, beat out Oliverio, who didn’t garner any outside spending, according to the study.

(Public Citizen’s hastily assembled list, published on Nov. 3 before all the elections were decided, differs slightly from this accounting from Politico, which puts the total at 68.  It’s not clear why Politico didn’t include open Senate seats that used to belong to Democrats, including Illinois, Indiana, North Dakota and Pennsylvania, that were won by Republicans on Nov. 2.)

Also, the earlier study focused on state legislators, not members of Congress, where much more money is in play. And Public Citizen’s study doesn’t look at overall spending, it only looks at third-party spending. It’s possible that some of the losing candidates actually outspent the winners when candidates’ own funding is added in.

But the quick takeaway from Nov. 2 is that outside parties are likely to keep pouring lots of cash into elections because, well, it seems to be pretty effective.

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An avalanche of cash in judicial campaigns, Pt. 2

In a previous post, we looked at the vast amounts of cash poured into judicial campaigns, particularly races for seats on state Supreme Courts, and how many believe that money is undermining the judicial system.

On a macro level, well-organized and well-funded groups are spending millions and millions of dollars to help elect judges they believe will be either pro or con lawsuits filed against big businesses. But what about on a micro level?

As this report, The New Politics of Judicial Elections, 2000-2009: Decade of Change,  co-authored by JusticeatStake.org, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School points out, when a judicial candidate accepts a campaign contribution, that leaves him or her open to the allegation that the donor will receive — or at least expect — special treatment from the bench.

In West Virginia, judicial candidates cannot ethically solicit campaign contributions directly themselves. But that doesn’t mean that lawyers and businesses don’t hurry to open their wallets and checkbooks for candidates whom they hope will look upon their cases and causes favorably. And in very extreme cases, this might lead to their disqualification, but only in the most extreme cases.

So what’s a candidate to do?

The current race for state Supreme Court between Democratic incumbent Thomas McHugh and Republican challenger John Yoder, circuit judge in Berkeley, Jefferson and Morgan Counties, offers an interesting case study.

As campaign finance filings on the Secretary of State’s website show, McHugh has raised $289,326.09 as of Oct. 22. Yoder, by contrast, has raised $5,851.40. To date, McHugh has spent almost 40 times as much as Yoder.

Now, Yoder may pay dearly for his modest fundraising on election day — I really have no idea — but clearly he intends to insulate himself from any hint of a suggestion that he is beholden to any given campaign contributor.

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An avalanche of cash in judicial campaigns, Pt. 1

With the election just days away, I thought now might be a good time to revisit the topic of money and judicial campaigns. Right now, with control of the U.S. Senate and the House of Representatives at stake, most of the media’s focus is on the flood of third-party cash poured into the closest congressional races without the true source of the funding being divulged. (Thank you, U.S. Supreme Court, for Citizens United.)

But as this report, jointly produced by JusticeatStake.org, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School, documents how, over the last decade, the amount of money involved in judicial campaigns has exploded. And, as retired Justice Sandra Day O’Connor explains in her introductory letter, the glut of campaign cash has a potentially pernicious effect on the judicial system.

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justce, three out of every four Americans believe that campaign contributions affect courtroom decisions.

This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.

We all have a stake in ensuring that courts remain fair, imparitial, and independent. If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.

The report itself concluded that in the past 10 years, $206 million has been spent on state Supreme Court races alone. Here’s what that looks like, in two-year units:

And here’s that $206 million figure broken down by source of funds:

Where does West Virginia figure into all of this? Well, with a total population of 1.8 million, which ranks 37th in the nation, West Virginia ranked 10th in spending over the past ten years, with almost $9.6 million in total spending.

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