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When Cash Turns Judges Into Politicians When Cash Turns Judges Into Politicians

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When Judges Go Courting

+(Sébastien Thibault)

When Judges Go Courting

In states like North Carolina, Supreme Court candidates have had to become more like partisan politicians.

By

Cheri Beasley wants me to drive. This, on its own, wouldn't seem extraordinary except when you consider that Beasley is a justice on the North Carolina Supreme Court, and I'm someone she met an hour ago. It's a 75-mile trip from Raleigh to Greensboro for a candidates forum, and she doesn't have a driver—or any staffer along for that matter. It's just her and me. After mentally flipping through the possible issues presented by this arrangement (Ethical problem? No. Possible campaign finance violation? I didn't think so.), I slide behind the wheel of her Nissan Murano and we're off, cruising away from Beasley's house of worship, the First Baptist Church.

In 2008, when she ran for an Appellate Court seat and won, Beasley became the first African-American woman elected to a statewide office who hadn't first been appointed to that office by the governor. Beasley is running for office again, this time trying to hold on to her Supreme Court seat (which she did secure by appointment, two years ago). But everything is different, and everything is harder. She's facing a stiff challenge from Mike Robinson, a bow-tie-sporting Winston-Salem lawyer with a background representing companies in civil lawsuits. Robinson is supported by the North Carolina Chamber of Commerce and other business groups, and he self-identifies as a "judicial conservative."

 

That's why Beasley has spent most of the summer campaigning across the state, traveling to far-flung towns along the Outer Banks to the east and the Blue Ridge Mountains to the west, spending entire days behind the wheel to get to events and speak to as few as 40 people at a time. She estimates she's put 40,000 miles on her SUV this year alone.

When Beasley isn't racking up miles, she and her three-person staff are phoning donors for money—something that's been, as she puts it, "a struggle." Her most recent financial report, released over the summer, showed her trailing Robinson in campaign funds. She may not have enough cash to air TV ads in the weeks right before the election in all three major markets in the state—Raleigh-Durham, Greensboro, and Charlotte. Robinson, on the other hand, has more than 700 ads already booked.

Having spent most of her career in public service, Beasley lacks some of the legal and business connections that other judicial candidates use to raise money. She started as a public defender down in Fayetteville, the home of Fort Bragg, a rough-and-tumble town that once carried the nickname "Fayette-nam" for the sordid entertainments it provided for its resident soldiers. Beasley made her bones representing domestic abusers, thieves, and, at times, murderers, but she also made enough friends and supporters to get elected as a trial judge. She's been on the bench ever since.

In her previous campaign, in 2008, Beasley took advantage of a state public-financing program to help judicial aspirants. The system, which provided a fixed amount of campaign funds and limited the amount a candidate could raise, was designed to bolster underdogs and reduce the influence of big money in judicial races. Beasley was the candidate public financing was made for.

But last year, the Republican-dominated Legislature repealed the public-financing program. As a result, candidates have to solicit every dollar they get. That's one reason Beasley had skipped a candidates forum in Raleigh the previous night, to attend a fundraiser in Winston-Salem. (She had shown up for a forum held the night before thatin Charlotte.)

Now we're pulling into the parking lot of a resort hotel in Greensboro for yet another forum. (If you're scoring at home, that's at least 400 more miles over the past three days.) Beasley opens up the lift-back door and removes several campaign signs. In a magenta suit and heels, she schleps them into the hotel lobby.

Tables line the walls outside the ballroom where Beasley is scheduled to speak. Next to her signs, she places handout cards with her picture on them. Robinson has his own paraphernalia already there—not just signs but also buttons and bumper stickers that read I LIKE MIKE. They cost money. Just like TV ads, radio ads, mailers. And that money has to come from somewhere.

Justice Cheri Beasley has put 40,000 miles—and counting—on her SUV during her campaign. (James Oliphant)Beasley often speaks to black church groups. They shower her with love. But money? Not so much. This is where the money is. The hotel's windows gaze upon a golf course. The forum is sponsored by the state Association of Defense Attorneys, the state chamber, a bevy of big-name law firms, and the North Carolina Free Enterprise Foundation. When Robert Hunter, another Supreme Court justice running for reelection, takes to the ballroom lectern, he channels Barry Goldwater and offers a stirring defense of judicial campaigning and fundraising, even if it gets a little ugly sometimes. "Part of the price of liberty is, sometimes we have excesses that cross over the line," the Republican-backed Hunter tells the well-appointed crowd of about 200. Asking for their votes and their financial support, he adds, "I look forward to seeing you in court."

The forum devolves into a kind of circus. No fewer than 23 judicial candidates for the Supreme Court and the appellate courts have been invited for the 90-minute event. (There are 12 candidates here for one Appeals Court seat alone.) The attendees grow restless, phones are checked, the whole thing feels like a Mass during which the homily goes on and on. Beasley ends up speaking exactly once. She's driven 75 miles to talk for four minutes—something a politician higher up the food chain would never countenance.

Still, it's a telling four minutes. Beasley uses her moment at the lectern to deflect a question about whether she's a judicial activist. Robinson is less circumspect. He declares himself a "strict constructionist," talks up "judicial restraint," and directs the audience's attention to a dissenting opinion that Beasley wrote in 2013 that, he implies, is antibusiness. (In the decision, the Supreme Court limited the reach of a consumer-protection law.)

After the event, Beasley is surprised that Robinson brought up the dissent; he's never done that before, she says. She believes Robinson was speaking in code, that he was winking to the corporate crowd, suggesting that he would safeguard its interests if elected to the court.

"So much," she says, "for judicial independence."

MIKE ROBINSON, like all of the candidates for the high court here, steadfastly denies that he's running to advance an agenda—even though he is endorsed by the state GOP—or that his judgment can be swayed by a few dollars thrown his way. "I am not for sale," he had said two days earlier at a forum in Charlotte. "My integrity is too important for me to consider joining in an opinion because someone contributed to my campaign."

The problem, however, is not that questions of partiality are being answered—it's that they're being asked. Four of the state Supreme Court's seven seats are up for grabs this fall. At every turn, the candidates have encountered hand-wringing over money and influence. They insist they're judges and lawyers first, pols second. But they've been dragged into a system that, across the country, increasingly blurs those lines. "We want judges to be different, but we've thrown them into this political blender where they're just like any politician," says Bert Brandenburg, executive director of Justice at Stake, an advocacy group that tries to check the spread of special-interest money in judicial races.

 

Thirty-nine states elect some portion of their Appellate Court or high-level trial judges. As judicial candidates increasingly resemble their office-seeking cousins, critics are gravely concerned that the judiciary is being cheapened, that public trust is eroding the same way it has with other branches of government. "It creates in the public mind the image that judges are corrupt," says Catharine Arrowood, president of the North Carolina Bar Association.

This moment has been long in coming. A little more than a decade ago, a divided U.S. Supreme Court held in a case out of Minnesota that judges, like other candidates, had a First Amendment right to express political positions and provide their views on pending matters. (The key swing vote, Justice Sandra Day O'Connor, later said she regretted her decision.)

In 2010, the Court, in Citizens United v. FEC, opened the door to unlimited spending by outside groups in elections. That same year, conservative groups spent furiously to remove three justices on the Iowa Supreme Court who had ruled in favor of same-sex marriage. The ball's been rolling ever since: A study by Justice at Stake and the Brennan Center for Justice found that in the 2011-12 cycle, interest groups spent $15.4 million nationwide in judicial races.

North Carolina has been right in the middle of the push-pull over judicial elections. The state modified its judicial conduct code in the wake of the high court's decision in the Minnesota case, not only allowing judges to have looser tongues on the campaign trail but also permitting them to directly solicit donors for money. That's something judges can do in just a handful of states. But, at the same time, North Carolina passed its public-financing regime, which was credited with—briefly—keeping a lid on big-money judicial campaigns.

When Republican lawmakers, after decades of Democratic dominance, took control of the General Assembly in 2010 and won a supermajority in 2012, the rollback of public financing was virtually inevitable. It came last summer as the state roiled in the midst of what felt like a cultural revolution. Republicans rolled back taxes, cut public-sector jobs, and reduced unemployment benefits. They passed laws requiring IDs at polling places and ending same-day voter registration. They enacted new abortion limits. In response, weekly "Moral Monday" protests packed the plaza outside the Capitol.

With this year's Supreme Court race, it's as if the state's conflict has leached into an adjoining room. The contests for eight-year terms on the court are officially nonpartisan, but no one seems to have told the candidates. Four of them, including Robinson and Hunter, are endorsed as a slate by the state Republican Party and billed as "conservative judges." (Robinson says that he's a "judicial" conservative as opposed to a political one.) Beasley and two other candidates, Justice Robin Hudson and Appeals Judge Sam J. Ervin IV, are running on the "fair judges" slate, backed by the Democratic Party, which laments the repeal of the public-financing law and cautions against the expanding role of money in judicial contests.

Beasley, who categorically refuses to express her views on hot-button decisions, says this is the first time in her 16 years on the bench that she's run into voters who believe "that because of my party affiliation that I therefore would vote a certain way, or that I have a certain judicial philosophy, or that my party affiliation would somehow determine the outcome in specific cases"—a contention she rejects as "absurd."

"I’ve basically got two full-time jobs: A full-time job running a campaign. And a full-time job on the court," says Justice Robin Hudson, who is running for the North Carolina Supreme Court.

But in the heat of battle, candidates at times stray from their lanes, sounding more like members of Congress than the non-ideologues they're supposed to be. At the forum in Charlotte, for instance, Hudson was openly critical of Citizens United, while her opponent, Appeals Court Judge Eric Levinson, another GOP-backed candidate, said the high court's ruling upholding the legality of the Affordable Care Act was wrong.

Hudson has her reasons to dislike Citizens United. Earlier this year, when she faced a primary, a slew of outside political action committees spent mightily to do her in. One group, Justice for All NC, ran a widely condemned TV spot accusing Hudson of being "soft" on child-molesters. The ad used as the basis of its claim a dissent Hudson wrote in a case about electronic monitoring of offenders. Hudson and two other justices argued that applying the monitoring program to offenders who had already completed their prison sentences and probation periods was overly punitive and unconstitutional as an ex post facto law.

"I was just horrified. It was such a distortion—and an attack based on one decision, which is dangerous for lots of reasons," Hudson, who ultimately survived the primary, tells me over coffee one morning in Raleigh. "It was a 4-3 decision on a constitutional issue that courts around the country have been divided on."

According to research conducted by the Institute for Southern Studies, a progressive advocacy group, the Justice for All NC PAC was backed largely by money from the Republican State Leadership Committee in Washington, which is dedicated to seeing conservatives elected in state government. This year, the RSLC formed what it calls its Judicial Fairness Initiative, directed toward electing to the bench conservatives who can safeguard GOP legislative victories. (As an example, the committee lauded a ruling by the Wisconsin Supreme Court this summer upholding Gov. Scott Walker's labor reforms.)

Hudson worries about such overt politicking. "It's contrary to the way the checks and balances in our whole judicial system is supposed to work," she says. "That's just so wrong. It's not what we're supposed to be about. We take an oath. An outcome-oriented approach is contrary to the oath we take."

Hudson knew, however, that she needed to raise money—a lot of it—to survive the primary and have a shot in November. Her campaign had to be different than the one she ran eight years earlier, when she relied on public financing. "We're kind of back to the Wild West," she says. Where once she asked for $500 contributions, she now solicits $5,000 checks, often making the calls herself. "I've basically got two full-time jobs: A full-time job running a campaign. And a full-time job on the court. I've had to spend time on the phone when I can."

"It's awful," she adds.

Judge Sam J. Ervin IV. (AP Photo/Gerry Broome)CAMPAIGNING AND FUNDRAISING may be awful, but the alternative isn't pretty either. When Judge Ervin made his first run for the Supreme Court in 2012, Justice for All NC ran an attack ad in the election's closing days, noting that Ervin was a campaign donor to former Democratic Gov. Mike Easley, who was convicted of violating campaign finance laws after he left office, and implying that Easley appointed Ervin to a state commission in return for his donations. (In fact, Easley reappointed Ervin to a commission he'd sat on for seven years after being tapped by a previous governor.) "Can we trust Sam Ervin IV to be a fair judge?" the ad intoned. Another PAC, the North Carolina Judicial Coalition, went on the air in a million-dollar buy touting Ervin's opponent, Paul Newby. Its ad, now infamous in the state's legal circles, featured a banjo-strumming narrator warbling about how Newby was tough on crime, and showed hound dogs chasing men dressed in black across a field.

It worked: Newby is on the court, Ervin isn't. The attack ads almost certainly turned the race around. "I was ahead in the polls most of the year," Ervin recalls. The bitterest pill, he says, was that because Ervin had accepted public financing, he was prohibited from soliciting private donations to fight back at the last minute. He was left defenseless as the Judicial Coalition PAC alone spent almost $3 million in support of Newby.

This time around, Ervin has girded for war. The grandson of the famed North Carolina senator who chaired the committee that probed Watergate, Ervin hired a fundraising consultant and went to work, spending as many as 15 hours a week on the phone begging for money—just like any other pol. "The dreaded call time. We got it, too," he says in an accent that amplifies his western Carolina roots. "I make calls myself. We have fundraisers. I've lost track of how many I've had."

Ervin says that none of it—the flesh-pressing, the dialing for dollars—comes naturally. Even though he hails from a political family, he says he's a lawyer first, and he describes himself as an introvert in the Myers-Briggs sense. "I don't like asking people for money," he says. "I'm very conflicted about whether it's something you really ought to do."

Art Pope, the state's former budget director and its most influential conservative activist, donor, and king-maker, has no problem with judges raising money. Pope opposed the public-financing program when he served in the General Assembly, and once he was appointed to state government by Gov. Pat McCrory, he did something about it; he zeroed out the program's budget. He was cheered on by conservative advocacy groups in the state, including the Koch-backed Americans for Prosperity. The Legislature soon ended public financing altogether.

Now, Pope says, judges have to play by the same rules as anyone else. The financing program, he contends, was problematic because it left citizens no choice but to give their tax dollars to any candidate who took advantage of it. His real preference, Pope says, would be to have judges appointed rather than elected, because the public knows so little about judicial candidates. But he says he isn't worried about the ethical implications of judicial candidates raising money. "If you're going to have elections for judges, then judges should seek voluntary donations from people like other candidates," Pope says.

But candidates for the bench rely heavily on those donors who are most likely to have business before their courts. The study by Justice at Stake and the Brennan Center found that during the 2011-12 cycle, more than half of contributions to judicial candidates came from lawyers, lobbyists, corporate interests, and political parties. The appearance of quid pro quo can be hard to avoid.

The PACs also muddy the picture. Challengers to North Carolina's redistricting map filed a motion last year asking that Justice Newby be recused from the court's consideration of the plan because the RSLC—which had helped state Republicans draft the map—had contributed to Newby's race against Ervin. The court denied the request, and Newby heard oral arguments with the rest of the justices earlier this year. (The court has yet to issue a ruling.)

 

The bar for stepping aside is high. In 2009, the U.S. Supreme Court held that a justice on the West Virginia high court should have recused himself from a case involving a coal company whose chief executive established a PAC that ran attack ads against the justice's election opponent. But the decision made it clear that a simple campaign donation to a justice didn't legally constitute a conflict of interest—even if the donor is a party before a court.

NORTH CAROLINA'S Supreme Court candidates are still waiting for this fall's dark-money bomb to detonate. Since the furious spending to defeat Hudson in the primary, outside groups have stayed quiet. Few expect that to remain the case in the last days before the election. "I'm bracing for it," Hudson says. Days after we talked, a new North Carolina-based Democratic group, Progressive Kick, announced it would be running TV spots in support of Hudson and Beasley. That may be good news for the "fair" ticket, but it also makes it a near-certainty that GOP operatives will follow suit.

Hudson would like to believe that her victory in the spring convinced conservatives that their money would be better spent elsewhere, that the child-molester ad backfired. She also points to the failure of outside groups to unseat three Supreme Court justices in Tennessee in a widely watched retention election in August.

But Hudson fears that the damage to the judiciary as an institution has already been done. She worries that the negative ads will have judges thinking twice before making unpopular or politically sensitive decisions. "You don't want judges to fear being attacked," she says. It's one reason federal judges are appointed for life. Imagine if Ruth Bader Ginsburg had to face voters every eight years like Hudson does.

No one can accurately predict how North Carolina's judicial races will turn out—or how much outside money will matter to the outcome. But it's clear that candidates like Beasley, with her relatively low name recognition and lack of big-money connections, now face high hurdles. She's not naive about the situation, just resolute. "There will be lots of money spent against me," she told me on the trip to Greensboro. "But if I believed what I was doing was in vain, if I believed I had absolutely no chance, I would not be working this hard."

The next day, she was scheduled for an early-morning breakfast in Durham, then was due to return to Greensboro, drive back to Raleigh, and finally finish the day down in Sampson County, near where her career began in Fayetteville. It will be an exhausting day, beginning and ending in darkness, with no guarantee that any of it will pay off in November. Beasley says she doesn't mind; she likes meeting people anyway. But I can't help but wonder: Is this really how we want our judges to spend their time?

This article appears in the October 18, 2014 edition of National Journal Magazine as When Judges Go Courting.

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