“Republicans have had a significant amount of success at the state level, not only being elected to offices but implementing bold conservative solutions,” Matt Walter, president of the RSLC, said in an interview. “Unfortunately, that’s running into a hard stop with judges who aren’t in touch with the public.”
The RSLC has already contributed $650,000 to Justice for All NC, a conservative group organized under Section 527 of the Internal Revenue Code. That group has started spending money on a television ad that attacks North Carolina Supreme Court Justice Robin Hudson over a dissenting opinion she wrote in a 2010 case involving three sex offenders.
Judge races are usually sleepy affairs that generate little interest, even at the state Supreme Court level. But as the influence of money in elections grows, judicial campaign spending has spiked, too.
“We’ve really seen judicial races become increasingly like an ordinary political contest, where judges essentially become politicians with robes,” said Alicia Bannon, of the Brennan Center for Justice at the NYU School of Law.
“The state courts are incredibly important. The vast majority of cases that are heard, over 90 percent, are in state courts,” Bannon added. “These are very high-stakes races, and I think national groups are turning more and more to the courts as the next front in the partisan warfare we’re seeing playing out in our legislatures.”
In the 2011-2012 election cycle, candidates spent $33.7 million on television ads in state Supreme Court races, according to a report [pdf] issued by the Brennan Center for Justice, Justice at Stake and the National Institute on Money in State Politics, of which Bannon was the lead author.
Outside groups, including political parties, accounted for about 43 percent of that funding. Increasingly, the report found, the advertising mentioned hot-button national political issues likely to be decided by various courts, like same-sex marriage and the Affordable Care Act. Three Iowa Supreme Court justices lost retention elections in 2010 after outside groups spent more than half a million dollars attacking them for voting to strike down a ban on same-sex marriage.
State Supreme Court candidates nationwide raised a total of $83.3 million between 1990 and 1999. That number shot up to $206.9 million between 2000 and 2009. At the same time, spending on independent expenditures, fueled largely by contributions from corporations, grew exponentially, according to a 2011 report commissioned by the California state Assembly Judiciary Committee.
In the 2012 election cycle, groups from across the political spectrum, from Americans for Prosperity on the right to the Human Rights Campaign on the left, spent money on judicial contests. That can raise questions of propriety: Many states don’t have rules that would require a judge to recuse himself or herself from a case involving a party that spent heavily for or against them in a preceding election.
Walter said his group hasn’t finalized its budget, but they expect to spend north of $5 million on judicial elections this year. He declined to lay out which races Republicans would target, beyond the North Carolina contest.
Methods of judicial selections vary widely by state. Fourteen states elect at least some of their judges through partisan contests, in which candidates identify themselves as members of a specific party. Nineteen states elect some or all of their judges through nonpartisan elections.
Twenty-six states give governors the power to nominate some judges. And in two states, Virginia and South Carolina, the legislatures elect judges.
In Alabama, all 163 judges — nine on the Supreme Court, five each who sit on the Court of Criminal Appeals and the Court of Civil Appeals, and 144 members of the Circuit Court — are elected in partisan contests.
Neighboring Florida gives the governor the power to nominate the state’s seven Supreme Court justices and 60 Courts of Appeal judges, while the 597 Circuit Court judges are elected in nonpartisan contests. Hawaii leaves it up to the governor to appoint all five Supreme Court justices, six Intermediate Court of Appeals judges and 33 circuit court judges.