This editorial appears in Wednesday’s print edition.
Washingtonians beware. The incentives to buy justice with campaign dollars are so great that it’s only a matter of time before the new super PACs come shopping for Supreme Court seats in Olympia.
The Washington Post reported last week that jurists in some states are preparing to defend themselves against unprecedented barrages of media attacks funded with unprecedented war chests. The stage was set in 2010 by the U.S. Supreme Court’s Citizens United ruling, which eradicated long-standing restrictions on campaign contributions from corporations and unions.
The decision provided for no firewalls between political and judicial elections. In states that insist on using popularity contests to pick their judges, the threat to an impartial judiciary is obvious.
Despite growing tides of political cash, judicial races in Washington still tend to be quiet affairs that largely consist of dignified candidates describing their qualifications and delivering carefully phrased comments on the law – and fending off demands that they signal, however subtly, their positions on current legal controversies.
Promises to rule in a particular way are the opposite of justice. All litigants deserve judges who haven’t made up their minds before hearing the cases.
Candidates for legislative and executive offices ought to tell voters precisely what they plan to do – that’s what representative democracy is all about. The judiciary is about waiting to hear the arguments, studying the facts and thinking hard before making the decision.
Some people with fortunes to throw around have other ideas. The great cautionary tale is Caperton v. Massey, a lawsuit that arose from an outrageously blatant piece of influence-buying that played out in West Virginia.
In that case, the CEO of the Massey Coal Co. was incensed that the state’s Supreme Court had ruled against his company in a previous dispute. In 2004, he donated $3 million to the campaign of Brent Benjamin, who was running against a member of the court. Boosted by the money, Benjamin picked off his opponent, took office and proceeded to reverse the decision against Massey.
The U.S. Supreme Court, in a moment of clarity, ruled in 2009 that Benjamin should have recused himself from the Massey case. That precedent offers a small counterweight to the specter of super PAC money inundating state judicial elections.
Even before Citizens United, unions and business interests in this state had aggressively stepped up their spending on Washington Supreme Court races. The court in 2010 wisely reinforced its recusal rules, deciding that justices “may” remove themselves from cases if their involvement would look improper. We’d prefer a stronger and more specific rule, but it’s clear where the court’s heart is.
The ultimate protection lies with Washington’s citizens. If voters don’t see the fundamental difference between judicial and political races, that difference will fade. Our courts will wind up on the auction block, with justice sometimes going to the highest bidder.