Judges 2: 'Worse Than Willie Horton' There are more than 30,000 state judges in America. And the vast, vast majority of them are not shielded from politics: They have to fight for their seats in elections. Sometimes very contentious elections, funded by millions of dollars in dark money. Is that a good idea? And what does it mean for how justice works in our country?
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Judges 2: 'Worse Than Willie Horton'

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Judges 2: 'Worse Than Willie Horton'

Judges 2: 'Worse Than Willie Horton'

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KELLY MCEVERS, HOST:

Hey, I'm Kelly McEvers. And this is EMBEDDED from NPR. And I want to start today in the state of Wisconsin with a story you don't expect to hear these days in the political hellscape that is 2019. It's about an election that actually had the explicit goal of keeping politics out of it.

(SOUNDBITE OF TV SHOW, "UPFRONT")

MIKE GOUSHA: Supreme court contests are, of course, famously nonpartisan affairs. Both candidates have told me there's no room for political ideology or partisan politics on the court.

MCEVERS: The two candidates were both appeals court judges in the state who were running for an open seat on the Wisconsin state Supreme Court.

MOLLY BECK: The races are officially nonpartisan...

MCEVERS: Molly Beck covers state politics for the Milwaukee Journal Sentinel.

BECK: ...So when you're in the ballot box, so to speak, there's no D or R next to the candidates' names.

MCEVERS: No party affiliations. Of course, Beck says, there's usually one candidate who's supported by Democratic groups, like unions or civil liberties organizations, and one candidate who's supported by conservative groups, like the Chamber of Commerce.

In this race back in April, Lisa Neubauer was considered the liberal judge; Brian Hagedorn, the conservative. And conventional wisdom held that Neubauer, who was raising a lot more money than Hagedorn, was the favorite. But then in January, something happened that took all the talk of nonpartisanship and threw it out the window. About 2 1/2 months before the election, the Journal Sentinel reported that back in 2005, while he was in law school, Brian Hagedorn had written some controversial blog posts about homosexuality and the law.

BECK: He said a landmark gay rights ruling by the U.S. Supreme Court, in which they struck down an anti-sodomy law in Texas, could lead to the legalization of bestiality. Critics said that that was him equating being gay to having sex with animals.

MCEVERS: Hagedorn also reportedly helped found a Christian school that allowed students to be expelled for being gay or having same-sex parents.

BECK: After that, that just seemed to set the stage for that race. That was just something that Judge Hagedorn had to respond to pretty much every time he was around some reporters.

(SOUNDBITE OF TV SHOW, "HERE & NOW")

ZAC SCHULTZ: Should voters be able to consider that as, OK, that's part of your legal thought process, and that's...

MCEVERS: This is from an interview Hagedorn did with Wisconsin Public Television.

(SOUNDBITE OF TV SHOW, "HERE & NOW")

SCHULTZ: ...On the Wisconsin Supreme Court?

BRIAN HAGEDORN: Well, I think I have a track record that people can pay attention to. Again, I would - and remind voters these were posts that - before I was even a lawyer. So I don't think those things are as relevant to this race and what this is about. I have the experience...

MCEVERS: Hagedorn also said criticism of the school he helped found was an attack on his religious views.

BECK: The realtors association here in Wisconsin - they withdrew their support of Judge Hagedorn. And they asked him to return the money. I believe it was about $18,000 that they had given him. There was just, I think, an assumption on both sides that there just wasn't - you know, this isn't going to happen for him.

MCEVERS: But then, in the final two weeks of the election - remember, it's an off-season state Supreme Court election - this unexpected thing happened. New last-minute ads started showing up on TVs across Wisconsin - lots of them - ads going very, very negative against Lisa Neubauer.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #1: Liberal special interests are trying to take over our Supreme Court. They're backing Lisa Neubauer because Neubauer will support their partisan agenda.

BECK: I remember seeing a photo of her, making her kind of look like she was the devil, you know? There was (laughter), like, red lights behind her and things like that. There was also another ad that compared the criticism of Judge Hagedorn to what was going on at the U.S. Supreme Court level with the confirmation of Justice Brett Kavanaugh.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #2: But the radical, out-of-state special interest groups are spending millions pushing liberal Lisa Neubauer and spreading false attacks against conservative rule of law Judge Brian Hagedorn, just like they did against Justice Kavanaugh. But when conservatives...

MCEVERS: The ads were paid for by a nonprofit group called the Republican State Leadership Committee. It's not from Wisconsin. It's based in Washington, D.C. And over the last five years, it has spent a lot of money helping elect conservative judges to state Supreme Courts. We reached out to the RSLC by phone and email but got no response.

In the last two weeks of the Wisconsin race, the group spent $1.3 million, almost all of it on TV advertising supporting Brian Hagedorn. That's about $300,000 more than Hagedorn raised on his own through the entire election. The group says its ads were viewed more than 14 million times in the final week of the race.

LISA NEUBAUER: It's more than ridiculous.

MCEVERS: This is Lisa Neubauer.

NEUBAUER: The ads that they ran had nothing to do with our qualifications, with our experience - had nothing to do with the fact that we were judges.

MCEVERS: And we should say, Neubauer also had outside money supporting her. And in the months leading up to the election, a Wisconsin-based nonprofit was running negative ads against Hagedorn.

In the end, Brian Hagedorn won the race by less than a percentage point. He said in a statement to us that his victory was a grassroots effort and, quote, "the people of Wisconsin were inspired by a campaign based on the rule of law. And they rejected the dangerous argument by my opponent and her allies that you cannot be a person of faith and a faithful judge."

For her part, Neubauer says she didn't think any outside spending was appropriate for a judicial race. And this isn't just a concern in Wisconsin. All across the country, these races that most of us don't really pay attention to are attracting a lot of money - tens of millions of dollars every year spent trying to flip state courts. We pay a lot of attention as a country to the U.S. Supreme Court - and with good reason. But that court only hears about a hundred cases a year. State courts, on the other hand, hear about 100 million cases - cases that directly affect people's lives.

BECK: I can't think of a controversial bill or a bill that was very consequential that hasn't been challenged in court. There's a joke in Wisconsin that it's not how a bill becomes a law, but how a bill becomes a lawsuit. And that's really how policy is made here.

MCEVERS: In the 2015-2016 election, outside groups spent more than $27 million on state judicial elections nationwide, a number the Brennan Center calls an unprecedented amount. And the people looking most closely at the issue are worried about a fundamental shift in how our democracy works - that an entire branch of government is now serving a purpose different than what was intended.

So that's what we're looking at today - at the decades-long, under-the-radar effort to remake state courts. We're going to see how it's done and how this politicizing of the courts is having very real consequences. That's after the break.

OK. We're back. And it's probably safe to say that you can't name a single one of your state Supreme Court justices - not to mention how they got the job. Don't worry. We couldn't either.

And so we looked it up. Turns out, when it comes to selecting state Supreme Court justices, there's not one standard. Generally speaking, states do this in three different ways. The first is elections, and 23 states do this. Then there are appointments, when governors and legislatures choose the justices themselves. Six states do that.

But almost half the states use a third way, a way designed specifically to avoid the partisan politics that come with contentious elections. It's called the merit system. Here's how it works. When there's an opening on the state Supreme Court, a board made up of lawyers and non-lawyers nominates a few people. And then the governor and legislature pick one of them to fill the seat, and they serve out a term.

But then the judges eventually go through what's called a statewide retention election. A simple yes or no vote - should this judge stay on the bench or not? - no opponent, just a yes or no. One of the states that does this is Iowa.

MARSHA TERNUS: My name is Marsha Ternus. And you're welcome to call me Marsha. In 2010, I was the chief justice of the Iowa Supreme Court.

MCEVERS: And full disclosure here - Ternus is on the board of Iowa Public Radio.

TERNUS: The justices on the Supreme Court stand for retention in the first general election after they are appointed and then every eight years after that.

MCEVERS: Ternus was first appointed to the state Supreme Court in 1993. And she says her first two retention elections were nonevents.

TERNUS: I didn't even think about them. I remember coming in - my first or second retention election - coming into work and somebody saying, well, were you retained? - and thinking, oh, geez, I didn't even look. They were not controversial. No judge had ever campaigned. And to my knowledge, I don't remember anybody on the Supreme Court ever having a campaign against his or her retention.

MCEVERS: But then, in 2009, Marsha Ternus was one year out from her third retention election, an election that could not have been more different from her first two, all because of a landmark case sitting before the Iowa Supreme Court that year. It was one of the most important civil rights cases in state history - Varnum v. Brien. It was a challenge to an Iowa law that defined marriage as strictly between one man and one woman.

This was still six years before same-sex marriage would be legalized nationwide by the U.S. Supreme Court. And the justices in Iowa had to decide, do the rights of heterosexual married couples also extend to same-sex married couples? And their answer was yes.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #3: An Iowa law declaring marriage to be between one man and one woman is unconstitutional - that's according to a ruling issued today by the Iowa Supreme Court. The court's unanimous ruling took many by surprise and makes Iowa the third state now where same-sex couples can marry.

(SOUNDBITE OF TV SHOW, "THE DAILY SHOW")

JON STEWART: Iowa?

(CHEERING)

STEWART: They are the aortic valve of the heartland of America. They are now officially more progressive than California.

MCEVERS: It was a remarkable moment that plenty of people were not happy about. Protests at the state capitol started almost immediately.

(SOUNDBITE OF ARCHIVED RECORDING)

DANNY CARROLL: A handful of people have rendered a decision - a decision that is contrary to the will of the people. It's contrary to God's law.

MCEVERS: This tape is from outside the courthouse on the day of the ruling.

(SOUNDBITE OF ARCHIVED RECORDING)

CARROLL: And it's time for the people, through their elected officials and their elected representatives, to decide what the law is going to be in this state. Courts do not determine law. The people determine law. We are not governed by courts.

TERNUS: We knew instantly that there was going to be a campaign against whoever was on the ballot the following year.

MCEVERS: Along with Ternus, there were two other justices up for retention election in 2010. And she remembers talking to them about how they should prepare.

TERNUS: The conversation I remember is, are we going to do something that had never been done before, i.e. fundraise and campaign? And we were all three, instantly - no. We're not going to do that. It was unseemly. It would make us look exactly like what they claimed that we were - politicians in robes. We thought it would damage the institution of the Supreme Court and change its character and how it was viewed by Iowans.

MCEVERS: Remember, this was a retention election, purposefully designed to keep politics out of the process. But that did not stop the opposition from launching a full-fledged attack. There was a statewide bus tour rallying people to vote no on retention. Mike Huckabee, former governor of Arkansas and Fox News personality, made robocalls. And a lot of outside groups weighed in.

TERNUS: There was a Mississippi group affiliated with the American Family Association. Their spokesman was the one who said that these judges are dictating from the bench which societal beliefs are acceptable.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #4: Liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa. If they can...

MCEVERS: This is from an ad paid for by the National Organization for Marriage. It ran about a month before the election.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #4: Three of these judges are now on the November ballot. Send them a message. Vote no on retention of Supreme Court justices.

MCEVERS: And the campaign worked. In November, Ternus and the two other justices lost their retention elections. It was the first time in state history that a Supreme Court justice was voted off the bench, let alone three at once. Seventy-one other lower court judges were up for retention election in Iowa on the same ballot. Every one of them was reelected.

(SOUNDBITE OF MUSIC)

MCEVERS: So I just want to pause here for a second and pose what I think is a pretty fundamental question about all of this. Why do we even have judicial elections, especially if all they do is lead to the nasty politics most of us consider not befitting of judges?

JED SHUGERMAN: So this is an interesting story to dig into just a little bit.

MCEVERS: This is Jed Shugerman. He's a law professor at Fordham University. And he wrote a book on the history of how we choose judges. It turns out that, at first, none of the states elected judges. They were all appointed by governors and legislatures. But then something happened that Shugerman argues changed all that.

SHUGERMAN: It's called the panic of 1837, and it was a global depression.

MCEVERS: And politicians tried to dig the country out of this depression by launching infrastructure projects.

SHUGERMAN: But then the states overdid it, spending huge amounts of money on roads and canals, et cetera. It may have made sense to build one road. But, you know, this legislator wants his city to have a road, and another powerful legislator wants his town to have a road. So instead of building one efficient road, they spent money on both.

So there was this huge backlash against pork barrel spending and waste by a populist wave that takes over state governments. So what does that have to do with judges, you might be asking? Well, to make that anti-corruption, anti-waste check on those politicians, they wanted to make sure that the judges would be independent of the corrupt governors and legislators.

We usually think of judicial independence now in the simple way of judges being independent from politics. But what these reformers did when they made judges elected by the people was make them independent from the governors that would appoint them and the legislators that would confirm them.

MCEVERS: So the idea was, electing judges would give the people more say over who was putting a check on the rest of government. In 1847, New York adopted a new constitution that called for electing state judges.

SHUGERMAN: In the next five years, about half the states follow New York. And then by the Civil War, two-thirds of the states are electing their judges. So what that means is people thought this was a great idea and it was working.

MCEVERS: But then, slowly, judicial elections started falling under the influence of party bosses and machine politics. Some states, like Iowa, tried to counteract that by adopting the merit system, which we talked about earlier, but other states just stuck with elections. And eventually, they became largely boring, one-sided affairs. But then, around the 1990s, something changed.

Joanna Shepherd is a law professor at Emory University.

JOANNA SHEPHERD: It was in the '90s when you started seeing all of this money pouring into the elections. You started seeing the elections become more and more political.

MCEVERS: People who follow these races say a lot of the big outside money - the money most responsible for politicizing these races - is coming from two places. On one side, there are trial lawyers and unions who tend to support more liberal judges. And on the other side, there are business groups and corporations that support more conservative judges. And these groups will spend millions of dollars on dozens of races each cycle.

The thing is, you will almost never see an attack ad about a judge's record on corporate finance lawsuits or their feelings about tort reforms - things that those groups are actually interested in.

SHEPHERD: Running attack ads about those issues that they care about are not going to get them anywhere with the voters, so they focus on different issues instead.

MCEVERS: Issues like violent crime.

SHUGERMAN: The example that's - just sticks out to me is from Wisconsin in 2008...

MCEVERS: This is Jed Shugerman again, law professor, judicial expert.

SHUGERMAN: ...Where you had a justice named Louis Butler on the Wisconsin Supreme Court. And he's the first African American justice on the Wisconsin Supreme Court.

MCEVERS: And in 2008, Louis Butler writes a decision in a case about lead paint poisoning.

SHUGERMAN: Well, he wrote an opinion that was a big step forward for victims of lead paint to be able to get some compensation for that.

MCEVERS: Manufacturers were not happy with the decision. And so, come election season, they spent $2 million supporting a challenger who did not have appellate court experience - a circuit court judge named Michael Gableman. The manufacturers ran this ad. A quick warning here - the ad mentions sexual violence.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #5: Unbelievable. Shadowy special interests supporting Louis Butler are attacking Judge Michael Gableman. Judge district...

SHUGERMAN: The ad said, with the face of Louis Butler and his African American face side-by-side with another African American face...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #5: Louis Butler worked to put criminals on the street, like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?

SHUGERMAN: Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child. Though each sentence of that ad was factually true, the overall ad was an entirely misrepresentative story.

Louis Butler's background was - he was not a judge who was looking for a loophole. His background was that he was a public defender. The loophole he found was otherwise known as a civil liberties violation, a constitutional violation. And it turns out that the loophole he found was only adopted by a lower court - was rejected by the Supreme Court. And Reuben Mitchell wound up serving his entire prison sentence. So what Judge Louis Butler did as a lawyer had zero effect on when this convict got out of jail. But it was using this racist sign, like a Willie Horton.

MCEVERS: Willie Horton, of course, was the subject of an infamous race-baiting ad produced for the George H.W. Bush campaign in 1988.

SHUGERMAN: I mean, it was really worse than Willie Horton. And it wound up costing the election for Louis Butler. These are special interest groups that are using criminal matters and scandalous criminal issues to demonize a candidate when their agenda is something completely different.

(SOUNDBITE OF MUSIC)

MCEVERS: After the break - how all of these ads are actually leading to judges changing how they rule on cases. That's coming up.

(SOUNDBITE OF MUSIC)

MCEVERS: OK. We are back. And we want to go back to the Iowa retention election for a few minutes here. One of the wildest things about the three judges not being reelected is that voters weren't deciding who would replace them, and the outside groups weren't actually supporting anyone else.

TERNUS: You know, they didn't know who was going to be appointed once we lost our jobs.

MCEVERS: Again, former Iowa Supreme Court Justice Marsha Ternus.

TERNUS: It was really a campaign of vindictiveness and retaliation. And this organization, I think, even on its website said, we have to send a message across the nation that judges ignore the will of the people at their peril. That would mean that instead of looking at legal principles and precedent and what the Constitution says, we should have been looking at polls of public opinion. If that becomes the guiding principles for judges, then, of course, civil rights, the rights of minorities, the rights of people who are unpopular are not going to be protected.

ALICIA BANNON: After Brown v. Board of Education...

MCEVERS: This is Alicia Bannon, who studies judicial elections for the Brennan Center for Justice.

BANNON: ...All throughout the South, you had billboards go up saying, impeach Earl Warren, who was the chief justice at the time of the Brown v. Board of Education decision. And I often think about what would our system have looked like if they had just been able to vote on Earl Warren the next year, you know? And I think that it kind of highlights the stakes in these cases 'cause when it's easy for people to retaliate against judges, to push them off the bench, I think it can really undermine the role that courts are supposed to be playing in our democracy.

(SOUNDBITE OF MUSIC)

TERNUS: I used to quote in speeches that I gave - Alexander Hamilton said in the Federalist Papers, or suggested, that the rights and privileges reserved to the people would amount to nothing without an independent judiciary. I'm paraphrasing, but, I mean, this isn't coming from me. I mean, these are kind of the views of the founding fathers.

If instead, now we're saying, well, you better write opinions and make decisions that please the majority, judges aren't performing the role that they were envisioned to perform. And then how does that make us any different from countries where the judiciary isn't independent and they do what the government wants?

(SOUNDBITE OF MUSIC)

MCEVERS: Ternus says she's concerned about whatever influences might impact judicial fairness. But new research shows there isn't much might about it. According to Joanna Shepherd of Emory University, it's already happening.

SHEPHERD: The more TV ads that are run in a state, the harsher the sentences imposed on criminals in that state.

MCEVERS: Shepherd and her colleague Michael S. Kang looked into how campaign ads and spending were affecting judicial elections. Their study was made possible by, of all things, Citizens United, the Supreme Court decision that opened the door to unlimited corporate and union spending on campaigns. What a lot of people don't realize is that before Citizens United, only about half of the states in the country had bans on corporate and union spending on elections - 23 to be exact.

And so when the U.S. Supreme Court said those bans were unconstitutional, you had this sort of naturally occurring political experiment. Places where previously there hadn't been big money, now there was a flood of big money. You could literally watch and see how judges decided cases before and after the change. And then you could compare that to judges who already had a lot of money in their races the whole time - judges in the 27 other states.

So Shepherd and Kang did this study. And what they found was that the judges affected by Citizens United were 7% more likely to hand out harsher sentences after the court decision.

SHEPHERD: So in other words, in 7% of cases - 7 out of every 100 cases - a vote came down differently after Citizens United than it would have before. And now, some people may say, 7% - that's not that big of a deal. But if you're - 7 out of every 100 criminals are now suddenly getting a very different sentence than they would have a year prior because of the Citizens United decision, that actually, I think, is a relatively big deal - certainly for those 7 out of every 100.

MCEVERS: In other words, when it comes to the judiciary, there is evidence that the Citizens United ruling is having tangible effects on case outcomes. So the question now, of course, is, is there a better way of choosing judges?

SHEPHERD: So my co-author and I are working on a book project on this now. And there's a lot of different issues. You know, some people would say, let's get rid of elections. On the other hand, most Americans actually like elections. And there's - it's not crazy. It's not crazy to think that we want judges that represent public opinion.

In our opinion, it's not the election so much that's the problem; it's the money. And we wish that when Citizens United was passed - that they had recognized that not all elections should be treated the same. Money should be different in different kinds of elections because different offices are different. Judges are not meant to be politicians.

MCEVERS: In fact, U.S. Supreme Court Justice John Paul Stevens, in his dissent to the Citizens United ruling, warned about this very issue. He acknowledged states were already worried about this kind of spending affecting the integrity of their judicial systems.

The fact that these races have become more political is something that voters on both sides have felt wronged by. Take the case of Brock Turner. He's the Stanford student who, back in 2016, was convicted of sexually assaulting an unconscious woman. Turner was sentenced to just six months in jail, followed by three years' probation. And a lot of people believe that sentence wasn't harsh enough. And the judge who issued it later lost his seat in a recall election.

But some people were upset about the recall and, according to one news story, warned that the result was, quote, "a powerful political force where it shouldn't be - the courtroom." It's probably fair to say the people who supported that recall would not have been happy about Marsha Ternus being ousted in Iowa back in 2010 and vice versa. So what are we to make of that?

SHUGERMAN: This is exactly the right question, right? You can't have a system that is entirely, a hundred percent judicial independence because you don't want to have judges that are untethered to any kind of democratic legitimacy. But you also can't have a hundred percent judicial accountability because then all you'd have is majoritarianism. And you'd have no more civil rights and no more civil liberties, no more protections from popular whims.

(SOUNDBITE OF MUSIC)

MCEVERS: It's a fundamental tension in our democracy - majority rule seems great until you're no longer in the majority. It's a tension playing out right now at this very moment in Texas, of all places. Texas is one of a handful of states that still has partisan elections where judges run as Republicans or Democrats and where, for decades, Republicans have more or less run the table. But last year, during the midterms, Democratic Senate candidate Beto O'Rourke drew out so many new Democratic voters that a side effect of his popularity was a lot of down-ballot Democratic judges won, ousted Republican incumbents.

In Houston, all 54 Republican incumbents up for election lost. One of those judges, Marc Carter, was especially well-respected. He set up the state's first veterans court to help veterans get treatment instead of jail time. Carter told VICE News after the election, quote, "The way you become a judge in Texas isn't based on merit. It's simply based on what party you are affiliated with, and that's it."

This summer, the Republican governor of Texas, Greg Abbott, himself a former state Supreme Court justice, signed a law creating a group to study if there might be a different, less partisan way for the state to choose its judges.

(SOUNDBITE OF MUSIC)

MCEVERS: This episode was reported, produced and written by Eric Mennel and Nailah Andre, with help from Chris Benderev and Tom Dreisbach. Editing by Lisa Pollak. Research help by Susie Cummings. Special thanks to Mark Kennedy (ph) and Tom Baxter (ph). Audio from outside the Iowa Supreme Court comes from John Pemble at Iowa Public Radio. Thanks, John. Jed Shugerman's book is "The People’s Courts: The Rise Of Judicial Elections And Judicial Power In America." Our theme song is by Colin Wambsgans; additional music from Ramtin Arablouei and Blue Dot Sessions.

Subscribe to this podcast if you haven't already. We are on Twitter @NPREmbedded.

That's it for now for EMBEDDED from NPR. Thanks for listening.

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