Politicalizing the Judiciary Even More

In the 1960s and 1970s, and into the 1980s, California had the most progressive and socially conscious Supreme Court of any state in the country. On the court were some of the greatest judicial minds of the era, and they produced scores of intelligent, well-researched and substantive decisions that provided immeasurable social benefits to the poor, the elderly, the disadvantaged, the disabled, and for what was to happen, to people who suffered injuries and damages at the hand of others. But the court also respected the human dignity and constitutional rights of those incarcerated, and numerous decisions protected those rights as well.

In 1986, under California law, three Supreme Court justices faced a public election for re-confirmation. In an unprecedented campaign, Chief Justice Rose Elizabeth Bird and Associate Justices Cruz Reynoso and Joseph Grodin, the heart of the slim liberal majority on the seven-person Court, were the targets of a massive and successful effort to defeat them. The issues presented to the public through millions of dollars in funding and non-stop advertising, had only to do with an alleged pro-criminal bias of the Justices,

protecting the rights of the bad guys to the detriment of victims in particular and society in general. At the heart of the campaign was the fact that the court had been extremely hard on death penalty issues, and numerous death penalty cases had that sentence reversed or commuted.

The backers of the removal movement knew they had these issues available and that they
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would play well with a fearful public. But, who was really behind the campaign – who was paying for the effort to unseat the three Justices?

It was not victims rights groups, it was not law enforcement, it was not any organization that wanted to see criminals put to death or otherwise denied rights. No, the campaign was initiated, organized, funded, and led by the insurance industry, and the purpose was to remove from the Court the Justices who had stood up for and protected the rights of injured people to recover damage awards in personal injury litigation. That is who began the effort, financed it, and ultimately changed the course of the California Supreme Court for more than a generation.

Following the defeat of Bird, Reynoso and Grodin, gop governor George Deukmejian appointed new, right wing justices to the Court, and since it has been a mecca of rubber-stamp decisions doing the bidding of big business, the insurance industry, the medical lobby, and while rights of the incarcerated have generally been ignored, continued litigation, in both California’s state courts and Federal Courts, have continued to restrict the application of the death penalty, and in the years between 1986 and 2006, 13 people were executed in California, and none since 2006.

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The result of the 1986 election was that big business and the insurance industry got what it wanted, but the public did not. That is a running theme in the politicizing of judicial elections, and it is now spreading across the county with massive right wing campaign funding now also being directed to and in fact creating judicial races. 15-20 years ago successful efforts to change the direction of courts were led by Karl Rove and well-funded organizations who succeeded in turning courts around to ultra right wing majorities in Texas and Alabama. The
Koch-Brothers funded Republican State Leadership Committee in 2014 spent millions of dollars across the country in efforts to defeat judges who are Democrats or who are liberal or progressive, replacing them with conservative republican ideologues, who would serve their extreme reactionary agenda.

The story of North Carolina Supreme Court Associate Justice Robin Hudson is a dramatic but representative example of what is happening in judicial races around the country. North Carolina legislators several years ago saw just this problem, and passed legislation that provided that the states’ judicial races should be non-political, and prohibited private campaign contributions from being made, instead providing for public funding of judicial elections. But, when in 2010 the gop took control of the state’s legislature, those laws were repealed, and this election year, the Republican State Leadership Committee targeted Justice Hudson as a Democrat they wanted removed from the bench.

An organization was created, and funded by the Republican State Leadership Committee, called Justice for All NC, and they produced an advertising campaign against Justice Hudson that was condemned by the NC Bar Association and described by a leading North Carolina political reporter as “perhaps the most despicable political advertisement ever aired in the state.”. A few years back, state legislators passed a new law requiring the electronic monitoring of convicted child molesters. In 2010, the law was challenged by someone whose conviction pre-dated the law, and while the law was upheld by a Supreme Court majority, Justice Hudson wrote a dissent, demonstrating how this ex post facto law instituting retroactive punishment could not constitutionally be applied to someone convicted prior to the law’s passage. The ensuing 2014 ad campaign screamed out to the voters of North Carolina that based on this dissent, that Justice Hudson “sides with child predators.”

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Thankfully, North Carolina voters saw through this, and she retained her seat on the Court.

Also this year, massive tobacco money financed a campaign to retain Illinois Justice Lloyd Karmeier, who had voted to overturn a $10 Billion verdict against Philip Morris Tobacco. Karmeier has refused to recuse himself from further proceedings on the case, despite his
funding sources. Oh, the Republican State Leadership Committee also gave him close to $1 Million.

The Institute for Southern Studies investigated the secret financing of some of these campaigns and found top contributors to include RJ Reynolds Tobacco, Lorillard Tobacco, Time-Warner Cable, Duke Energy, Prudential, Bank of America, Lowe’s, and Blue Cross/Blue Shield.

Once upon a time there use to be a fantasy of judicial independence, that judges looked at the law and looked at the facts, and rendered fair and just decisions. Nowadays, their positions are bought and paid for by big money interests, just they way that they buy people like former governors Bob McDonnell and Rod Blagojevich.

About theHoundDawg

For many years as a lawyer, I saw much of the good and bad of society, and did what I could to right many wrongs. The lack of understanding of what is good and bad, right and wrong, just and unjust, as evidenced by such events as the election of King W as president, (who as such far surpassed the evil of richard nixon but not quite that of ronald reagan) lead me in a new direction, to spend my time trying to understand what is happening to our society, to try as best I can to spread my insights to others, and along the way to maybe even eke out a living through the internet.
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