Justice at Risk: Montana s Fight For Impartial Courts

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1 Justice at Risk: Montana s Fight For Impartial Courts James C. Nelson, Justice, Montana Supreme Court, Retired September 17, 2013 Thank you for inviting me to speak to you today; it is good to be back at the Law School. We gather here on Constitution Day to celebrate the Constitution of the United States. Our Constitution is 226 years old today; it was signed on September 17, 1787, in Philadelphia by 38 of 41 delegates to the Constitutional Convention, and became the supreme law of the land when it was ratified by 11 States on March 4, For over two centuries our Constitution has weathered everything that our Country indeed, our world could throw at it: foreign and domestic wars, social upheavals, economic good times and bad, terrorist attacks, unimaginable changes in our people, business, environment, science and technology. And, through all that our Constitution has stood solid against every test; the vision those who wrote, debated, and finally signed that document as persevered for more than 200 years. The tripartite form of republican government that the framers established for our Country has survived to this day. Our Constitution still stands as a document for the ages. Yet, we know that history repeats itself; and once again the framers vision of a government for We the People is under attack by forces of power, privilege and greed. It is to part of this clear and present danger that I want to address my remarks today. And these are my own thoughts; I am not a spokesperson for Montana s Supreme Court or any of the organizations I refer to in these comments. It is Civics 101 that the first and second branches of government the legislative and executive branches are the political branches. In those branches we expect partisanship and advocacy. The legislative branch is called the peoples branch because those elected to that branch are elected to represent their certain constituents and to fight for their interests. Similarly, the executive is elected by the people to represent the ideology of the majoritarian political party. Indeed, though, it might be fairly argued that during the last decade zealous partisan in both the legislative and executive branches has overreached to the point that, no 1

2 longer, is the good of the State or the Country being sought, but, rather, it is good the party that controls. We expect or, better said, we must expect something different from the third constitutional branch of government, the judiciary. Again, it is Civics 101, that in the federal system trial and appellate judges are appointed. In the states, justices and judges may be appointed or elected. According to Justice at Stake, in 29 states justices of the state supreme court are appointed through some sort of merit selection process. In the remaining 21 states justices are elected. The Center for American Progress reports that 8 states elect or select their justices by some sort of partisan process. In Montana, with some exceptions, appellate court justices and trial judges are elected in non-partisan elections. I am not here to debate which system is best. Regardless of the method of selection, however, politics does play a role in the way we select or elect our justices and judges. The magnitude of the role depends on the State and the method of selection. Personally, I think Montana does it right electing justices and judges to specific terms and holding those public officials directly accountable to the voters. It is my hope Montanans can continue to do that. What I am here to state unequivocally, however, is that regardless of how a justice or judge is elected or selected, once that man or woman takes the oath of office and dons the black robe of judicial authority, then his and her official decision making must be guided by three bedrock principles: fairness, impartiality and independence. Fairness encompasses notions of candor, civility, decency, equity, honesty, tolerance, truth and veracity. Impartiality brings to mind the idea of neutrality taking neither one side nor the other until all the facts are in and the legal arguments are made and deliberated. Independence, in the judicial sense, means that the judicial making process is accomplished separate from the workings of the other two branches and, most importantly, apart from political, religious, social, economic and majoritarian ideology. Courts function independently of the other two branches of government; and the solemn obligation of the men and women who serve as justices and judges is to support, protect and defend the Constitution of the United States and the Constitution of their particular state and to adjudicate cases based only upon the facts of the case and the applicable law. Each justice and judge takes an oath to do specifically that. That is how people expect their government to work; and the people, for whom, after all, all of our governmental institutions are instituted, have the right to 2

3 demand--and they do demand--that the three branches of government actually work in that fashion. No woman or man, no business, no governmental or private institution, wants to come to court and stand before a judge, where the fix is in. No one wants to litigate in a court were the justice or judge is neither fair, nor impartial nor independent. Every litigant is entitled to a day in court where the outcome of the case is decided on the facts and applicable law not on the justice s or judge s political, religious, social or economic philosophy and, most importantly, not on the basis that he or she is beholden to someone or to some entity for being selected as a judge in the first place. Quite simply, the wheels of justice are not supposed to be greased with money and obligation. Yet, for all of the good design and noble intentions of the framers of our tripartite system of government, we are now facing a time when these ideals are being turned on their head. As to the courts and judiciary, we are entering a time in our history when Justice is at Risk. We are all familiar with the United States Supreme Court s decision in Citizens United. The full ramifications of this case have yet to be written. Suffice it to say for our purposes here that Citizens United ushered in the unprecedented use of dark, individual and institutional mega-money to influence elections and, effectively, to silence the voices of individual small contributors and ordinary voters. The Supreme Court s approach and subsequent court cases have chipped away at contribution limits, imposed upon individuals, corporations, unions, special interests groups, non-profits, and trade associations. Citizens United has already resulted in millions of dollars pouring into elections with little or no disclosure of the source of funding and with little, if any, accountability for the truth and accuracy of the messages. Indeed, candidates are being marketed to voters in the same fashion that fast food and frozen vegetables are hawked to consumers. To quote Warren Susman, we have changed from a culture of character, into a culture of personality. Now according to a majority of the Citizens United Court, contributions paid directly to a candidate breed corruption quid pro quo I give you money; I get your vote. However, corporate expenditures made on behalf of a candidate do not have any such corruptive effect because I am simply providing the public with information about you or about your opponent. For those living in a parallel universe that nuance may make sense, but, in reality it is a dichotomy grounded in utter fiction. Either way you cut it the contributor or expender is using a lot of 3

4 money to influence an election and to secure a vote in favor of or against a candidate or issue. Worse, the Citizens United canard presents a clear and present danger for the states, like Montana, where voters elect their judges and justices. Citizens United applies to judicial elections, too. And, make no mistake, its effects will come to dominate judicial elections and, ultimately destroy those three bedrock principles fairness, impartiality, and independence. Montanans, rightly, demand a judicial system that is grounded in these three principles. And, those principles are threatened when corporate and special - interest money drive judicial elections. This is not just an idle or speculative statement. Indeed, there is proof. The verification of the Citizens United effect is found in an objective, non-partisan report Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions. 1 This study, released this past June, was sponsored by the American Constitution Society for Law and Policy. Justice at Risk provides critical data on the effect of campaign expenditures on judicial behavior from The empirical research underlying Justice at Risk, involved a team of scholars guiding the work of numerous research fellows. Over 2,345 business-related supreme court decisions from all 50 states were examined for the two year period, and these data were merged with over 175,000 contribution records that detailed every reported contribution to a sitting state supreme court justice. Justice at Risk s findings are disturbing. Let me give you just a few of the highlights. During the last decade contributions from business groups, and lawyers and their respective lobbyists have dominated interest group contributions--with unions, by contrast, contributing a small fraction to judicial campaigns. While contributions to candidate campaigns from business groups and from those representing the plaintiffs bar are approximately equal (30% vs. 28%) business groups overwhelmingly dominate interest group spending on television advertising the most expensive and effective form of campaign activity. Certainly, any interest group that is able to marshal campaign contributions might exert influence over judicial elections. However, with their unambiguous agenda favoring business and pro tort-reform, business groups typically focus on electing justices with that pre-disposition. Moreover, Justice at Risk shows that 1 This report can be examined on-line at 4

5 business groups regularly disguise their campaign support by channeling funds through nonprofit groups with inspirational but completely opaque names i.e. via dark money. On the other hand, the study also demonstrates that the plaintiffs bar typically represents a much more diverse range of clients and economic interests, and is, thus, less inclined to favor a judicial candidate with a particular ideological agenda or pre-disposition. Justice at Risk shows that holding factors like individual justice characteristics, ideology and data about state law and political climate constant, there is a significant relationship between business group expenditures to state supreme court justices and the justices votes on cases involving business matters. The numbers are stark the more campaign expenditures a justice receives from business interests, the more likely the justice is to vote in favor of the business in court cases. While some might argue that the judges are simply following their own ideological preferences and that business expenditures for a judge merely reflect businesses desire for pro-business judges, Justice at Risk demonstrates the opposite. The report found that the influence of corporate campaign contributions goes far beyond ideological leanings. The largest influence was on judges affiliated with the Democratic Party, who are assumed to be less ideologically predisposed to favor business interests. Importantly for Montana judicial elections, the data show expenditures influenced judges decisions in both partisan and non-partisan election systems. The report reveals the influx of expenditures generated by Citizens United and subsequent cases is having significant impact on judicial impartiality. The data demonstrate there is stronger correlation between business contributions and judges voting in the period from , compared to And, unfortunately, Justice at Risk concludes that there is no sign that the politicization of supreme court elections is lessening. Indeed, powerful interest groups influence on judicial outcomes will only intensify. And let me emphasize that point in the most candid way I can. Mega money contributions from institutions, individuals, corporations and special interests and the influence of lobbyists already exert inordinate control over the legislative and executive branches of government especially at the federal level. And, those same moneyed interests know that, to totally be in control of the power of government, they must also exert that same inordinate economic domination over the judicial branch. After all, it is the courts which enforce the Constitutional rights 5

6 of people; that protect consumers and the injured; that ensure that criminal defendants rights are enforced; that secure the guarantees of open access to the civil judicial system; and that serve as the bulwark between the people and the abuse of power and privilege by governments, individuals, business entities, corporations and institutions. The mega money folks know that to control government they have to control all three branches. To date, the judicial branch has always been beyond their grasp; judges have always been the fly in the ointment. But the high rollers know that the best way to secure a favorable result for their case or their industry or special interest is to make sure the justice or judge is beholden to them. Mega money aims to insure that the jurist becomes and stays justice or judge because of dark campaign expenditures and contributions. This is what we saw in the Caperton case; a large corporation spending several millions in a candidate s campaign to elect that person to the state supreme court and to then, not surprisingly, secure a favorable result in that corporation s appeal. The point here is that a fair, impartial and independent judiciary is the only thing standing between the people and the abuses of the Constitution, the law and justice itself, by king-makers and corporations. Citizens United and its predecessors teach that money is speech. And as money corrupts, enough of it corrupts absolutely. While Montana judicial elections have been, for the most part, free of megamoney influences, our State is not immune from the Citizens United effect. Montana s Corrupt Practices Act was mostly declared unconstitutional by the Supreme Court in the American Traditions Partnership case. The Ninth Circuit declared and just recently reaffirmed as being unconstitutional Montana s statutory ban on partisan endorsements and expenditures in what are supposed to be nonpartisan elections. New challenges are being raised--all with a purpose of gaining control over the judiciary and destroying the bedrock principles of judicial fairness, impartiality and independence. And, finally, let me close with one further observation. There are those jurists who call themselves orginalists. In pursuit of that ideology, they maintain that the intent of the original framers of the federal Constitution controls the court s interpretation of that document. Originalists take the position that the courts err and are activist in expanding existing constitutional rights and inventing new ones that are not textually provided for in the Constitution or were not within the contemplation of the original framers. Such Justices reject the idea that the Constitution is an evolving document. As Justice Scalia recently stated 6

7 in his remarks in August in Bozeman, Justices are no better suited to decide what rights ought to exist than is Joe Sixpack. As the Justice noted: Who decides what [the Constitution] ought to mean?.... Five lawyers? What, are you crazy? Who would ever set up a system like that? Well, I suggest that the framers themselves set up exactly such a system; and I will not believe for one instant that the men who laboriously wrote, debated and ultimately signed the Constitution, were so cabined in their vision as to expect that their work would have a shelf life limited to their generation. I categorically reject the notion that the framers were so obtuse as to believe that science and technology would never advance; that government and institutions and business interests would never change or overreach; that commerce and social mores would forever remain stuck in the 1700s; and that the language of the framers and the context in which they used it would limit the interpretation of their work, hundreds of years into the future. I refuse to believe that the federal Constitution was written by people afflicted with such intellectual myopia. Indeed, who would ever set up a crazy system like that? To be sure, there is no textual right in the Federal Constitution to an abortion and there is no right to commit sodomy, as the Justice once put it. But on the other side of the coin, at the time the Constitution was written the powers of corporations were very limited; and corporations did not enjoy the fundament rights enjoyed by the people themselves. Indeed, the original framers were highly distrustful of the power of corporations. Rather, it was the Supreme Court that over the years extended and invented various corporate constitutional rights including the right of corporate political speech. I suspect that the framers would be appalled at Citizens United and its predecessor cases. Given the framers attitudes, they would certainly never have intended that mega businesses and special interests would share the fundamental right of free speech that the founding fathers created for Joe Sixpack. And I highly doubt that the framers would have foreseen, much less have intended, that the Supreme Court would interpret the First Amendment so as to enable big business and special interests to spend their way into control of the three branches of government under the guise of corporate free speech. So, it seems that Originalists are quite selective in their condemnations. But like Han Christian Andersen s emperor the originalists have no clothes. Indeed, as a judicial philosophy, originalism is grounded more in opportunistic hypocrisy than in fact and substance. 7

8 I have always believed that the framers wrote the Constitution to be a living document evolving to meet the problems of each new generation; a document to be interpreted and enforced by courts and judges to protect people living in their own time in history. The framers did not write a Constitution with an expiration date and over two centuries of evolving history has demonstrated that to be true. The Constitution is as viable today as it was on the day on which it was signed. And it is the courts and fair, impartial, and independent judges that have kept the Constitution alive and well. I continue to believe that the framers envisioned a robust system of checks and balances and a co-equal, coordinate, third branch of government composed of fair, impartial and independent judges whose job it was, and is, to interpret the living Constitution in the context of the present not the past. And, if that is the system that the framers created, and they re crazy for doing so, then thank God they were all nuts. In closing, for Montanans the battle lines are clear: we must fight for the fundamental right to settle our legal differences in fair, impartial and independent courts; we must condemn those who would destroy that ability; and we must reject efforts to marginalize the judicial system--a co-equal, constitutional branch of government. If those battles are lost to the forces of Citizens United, then we must change the manner in which judges and justices are chosen under Montana s Constitution. This battle is an important one because Justice is, indeed, at risk. We the People each of us are only the most recent generation of Americans who have been called upon to defend the framers vision of a Constitutional government Of the People, By the People, and For the People. That responsibility is now ours. And, it is up to us to make sure that for as long as our Country lives, there will be a Constitution Day to celebrate on September 17 th. Thank you. 8