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.''
Thomas R. Phillips, a retired chief justice of the Texas Supreme Court, said canons of conduct outside the courtroom make judges "uniquely unable to defend themselves from attacks" from groups angry about unpopular decisions that judges have made.
That issue has particular resonance in Pennsylvania, where a 2005 middle-of-the-night decision by the legislature to grant pay raises for all three branches of government continues to roil state politics.
The state Supreme Court ruled that lawmakers could rescind their own pay raises but not those for judges. The state constitution did not allow judicial salaries to be reduced, the court said, a prohibition meant to insulate judges from political retaliation. Electoral retaliation was another matter: One justice lost his seat when he faced voters later that year.
Now, a group called PACleanSweep is urging voters to reject 66 of the 67 sitting judges on the ballot for retention this year -- the only exception being one judge who returned her raise to the state treasury.
Bert Brandenburg, executive director of the Justice at Stake campaign, a nonpartisan effort that has highlighted the explosive growth of fundraising and changing nature of judicial elections, said there is an inherent conflict in treating judges the same as politicians.
The "new politics" of judicial elections, Brandenburg said, "demands that judges be Huey Long on the campaign trail and Solomon in the courtroom and not miss a beat in between."
Some judicial candidates have been even more outspoken than in the past since a 2002 U.S. Supreme Court decision that said some state restrictions on the speech of judicial candidates were unconstitutional.
Former Alabama chief justice Drayton Nabors, unseated in the 2006 election, said in one of his television commercials: "I'm pro-life. Abortion on demand is a tragedy. And the liberal judicial decisions that support it are wrong."
Pennsylvania Supreme Court Justice Max Baer declared in his 2003 campaign, "I am pro-choice and proud of it."
The Pennsylvania candidates this time have been more circumspect. "People know that I'm bound by a code of judicial conduct," said Republican Maureen Lally-Green, who like McCaffery is a judge on the state's Superior Court. "If I'm going to rule on any case, I can't promise what I'm going to do."
But the candidates can give hints. Republican Mike Krancer's television commercials declare him a conservative who doesn't believe in legislating from the bench, while the screen flashes his endorsement from the Pennsylvania Pro-Life Federation.
Although the candidates have largely avoided personal attacks, there are signs the race could change in the closing days. The Pennsylvania Republican Party last week called Democratic candidate Debra Todd, also a Superior Court judge, "the drug dealer's choice for Supreme Court" based on a ruling she issued dismissing charges against a suspect.
Such tactics and the candidates' dependence on fundraising are what motivate those who would change the system, such as Lynn Marks, executive director of Pennsylvanians for Modern Courts. She would scrap the partisan elections for a form of merit selection, where the governor chooses from candidates nominated by an independent commission. (Maryland and Virginia have different versions of appointive systems, and Virginia judges never face voters.) Currently, Marks said, "If we wind up with qualified candidates, it is in spite of the process, not because of it."
But Marks acknowledged that voters are reluctant to give up their role, and candidates such as McCaffery said they should not.
His campaign is based on his outsize personality and compelling life story. With a shiny shaved head and barrel chest, McCaffery is a former Marine and Philadelphia beat cop, who said he went to night school for 11 1/2 years to finish college and earn a law degree from Temple University.
As a lower court judge he opened a courtroom in the bowels of the old Veterans Stadium to deal with unruly Eagles football fans, and he parlayed the resulting publicity into a campaign slogan: "The judge who brought law and order to the NFL."
He made a steady rise through the state court system, along the way turning down what he said was a $2 million offer "to become the next Judge Judy."
As for the campaigning, McCaffery likes it -- and says he has no trouble "being a politician out here and a judge in the courtroom."
Michael DeBow, a professor of law at Cumberland School of Law at Samford University in Alabama, was a somewhat lonely voice advocating judicial elections at the O'Connor event, saying they "do the best job of promoting public involvement." He contended that studies of job performance show "not much discernable difference" in judges from a state that holds elections and those where the positions are appointive.
Federal judges are appointed, McCaffery said, but their political backgrounds are hardly irrelevant to the president and members of Congress who play a role in their selections. And merit selection is "elitist," he said, and not open to candidates with his background.
McCaffery mentioned his wife, who is also his campaign manager, a Harvard and University of Pennsylvania law school grad who served as an assistant district attorney.
"She's appointable," McCaffery said. "I'm electable."