RENEE MONTAGNE, host:
A new report showed that business interests spend twice as much on elections for the state's high court as all other groups combined, including lawyers. It was compiled by the nonpartisan group Justice at Stake. At the same time, a new poll of business leaders shows uneasiness with the trend.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Documenting the increasing influence of money in judicial elections, the report shows fundraising by state supreme court candidates up in 2006, with the median being close to a quarter of a million dollars per candidate, and the record in Alabama, where the total price tag for the race for chief justice was $8.2 million.
TV ads ran in 10 of the 11 states where state supreme court judges were up for election compared to just four states out of 18 six years earlier. Average television spending hit a new record at $1.6 million per state. And business interests outspent everyone else combined by two to one.
Mr. CHARLES KOLB (Committee for Economic Development): What we are seeing now is the beginning of a very serious arms race.
TOTENBERG: Charles Kolb is president of the Committee for Economic Development, a business group that is part of Justice at Stake. He contends that the arms race could end up with the mutually assured destruction of our judicial system. His group sponsored a Zogby poll of business leaders that shows concern running so high that 70 percent of those polled favored alternatives to judicial elections.
The big players from the business community in judicial elections, however, are the U.S. Chamber of Commerce and the National Association of Manufacturers. They began focusing on state judicial elections because they thought they were being outgunned by the plaintiffs bar - lawyers seeking big damage awards for clients who claimed injury.
And it used to be that they were; not any more. Business groups contributed twice as much to Supreme Court candidates as lawyers and unions combined in 2006. And in terms of non-candidate TV advertising, 85 percent of it was sponsored by business groups.
In Georgia, for instance, where the lone race for the state supreme court cost $38,000 in 2000, in 2006 the National Association of Manufacturers targeted Justice Carol Hunstein through its affiliate group, the American Justice Partnership, with $1.3 million in contributions.
Partnership president Dan Pero explains why.
Mr. DAN PERO (President, American Justice Partnership): Justice Hunstein was very, very unpredictable, and given the organizations who supported her in the past, that she was someone who we weren't going to feel that we could rely on that would interpret the laws the legislature passed with tort reform.
TOTENBERG: But tort reform was not prominently featured in the anti-Hunstein TV ads.
(Soundbite of ad)
Unidentified Man: Hunstein substituted her preferences on capital punishment for those who made the law.
Unidentified Woman: Carol Hunstein also voted to throw out evidence that convicted a cocaine trafficker.
TOTENBERG: So why the focus on criminal cases?
Mr. PERO: And also the kinds of decisions that frankly voters identify with.
TOTENBERG: Ironically, Hunstein's record was considerably more conservative than her other colleagues up for re-election. A statistical analysis of Georgia Supreme Court criminal case rulings done by the Fulton County Daily Report concluded that in cases decided by a divided vote, Hunstein sided with the prosecution 39 percent more often than did the court as a whole.
Despite the fact that business groups poured money into the campaign to defeat her though, Hunstein raised over $1 million herself and won. Some of her supporters say that, at minimum, the campaign was meant to send a message to others on the court that they too could face a business-financed challenge.
Former Michigan Gov. John Engler, the president of the National Association of Manufacturers, concedes as much.
Mr. JOHN ENGLER (Former Michigan Governor): That ought to be a message. That would be something I strongly support, is that yes it matters.
TOTENBERG: Ohio Chief Justice Moyer, a Republican, is the nation's longest-serving current chief justice and has a different viewpoint.
Chief Justice THOMAS MOYER (Republican, Ohio): Human nature is that we help people if they help us. And that's the very problem with our system. We pour all this money into an election for the highest court in the state. And then we tell people, well, we're fair and impartial, the money doesn't mean a thing to us, and it's a counterintuitive.
TOTENBERG: Judges like to say that money doesn't matter when they are making decisions, but trying to ignore big money in judicial elections, observed one noted judge, is like trying to ignore the crocodile in your bathtub.
Nina Totenberg, NPR News, Washington.
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