Judicial Races Now Rife With Politics

By Robert Barnes
Washington Post Staff Writer
Sunday, October 28, 2007

BUTLER, Pa. -- It's always packed for Wing Night at American Legion Post 117, and in the crowd Seamus McCaffery saw the building blocks of his electoral success.

The local sheriff, the union guys, the daughter of a veteran who said, "I like your commercial about being a Marine." And the beefy biker in black leather, with the long gray ponytail and ZZ Top beard.

"You think the big politicians are going to ask for his vote?" scoffed McCaffery, himself a biker. "They'd be afraid of him!"

McCaffery makes no bones about being a politician: He's got a snazzy Web site, an unrelenting statewide travel schedule and more than $1 million in his campaign treasury.

He's also a judge. And the job he covets is an elected spot on the Pennsylvania Supreme Court.

McCaffery is one of two Democrats facing two Republicans in a Nov. 6 election that has broken the state's record for Supreme Court campaign contributions, at more than $5 million so far. It follows a line of recent judicial contests across the country that set records for spending, as well as for negative television ads and special interest involvement.

Experts believe it is all a warm-up for 2008, as pro-business groups and trial lawyers bring their fight over tort laws to the state level and as partisan groups vow a greater role in the elections.

Judicial elections are an almost uniquely American invention, with a patchwork of more than 16 selection systems spread across the country. In the 21 states that hold direct partisan and nonpartisan elections for the high court, some already have evolved from quiet, down-ballot contests to full-blown campaigns with consultants and multimillion-dollar advertising campaigns. An Illinois Supreme Court contest in 2004 cost more than 18 of the 34 U.S. Senate contests that year, and candidates for chief justice of the Alabama Supreme Court last year raised a total of $8.2 million.

The spending increases in large part reflect a decision by business groups to get involved in the contests. The National Association of Manufacturers announced in 2005 that it was establishing the American Justice Partnership to promote tort reform in the states, and the resulting battles between trial lawyers and business groups such as the Chamber of Commerce have led to some of the most expensive campaign battles.

A large majority of the money raised for races in 2005 and 2006 was spent in 10 states, and 44 percent of it came from business interests, the National Institute on Money in State Politics found. That was about twice as much as was given by lawyers, who had traditionally funded the campaigns.

The heightened spending and increasingly aggressive tone of the contests have alarmed nonpartisan groups and judges from around the country. Retired Supreme Court justice Sandra Day O'Connor, a longtime critic of judicial elections, has taken the lead in denouncing what she has called the "arms race" in campaign fundraising, and at a recent conference she presided over at Georgetown University Law Center, two of her like-minded former colleagues -- Justices Stephen G. Breyer and David H. Souter -- were in the audience.

"The reputation of the American judiciary is in the hands of the state courts," Breyer said. The rising demands on judges to raise money for their expensive campaigns -- plus the spending of outside groups -- could lead to the impression that the courthouse door "is open to some rather than the door is open to all.''

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