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Judicial Campaigns: Beginning to Look a Lot Like Congress

Would-be judges employ big bucks, TV ads and questionable attacks.

November 20, 2006

Modified: November 20, 2006

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Summary

In the months before Nov. 7, we focused almost exclusively on the claims being slung back and forth in House and Senate races. Now we take a look back at another set of ads, present in greater numbers than ever before – ones that were aired in state Supreme Court races. 

Unlike federal judges, who are nominated by the President and confirmed by the Senate, state-level appellate judges in 23 states are chosen through contested elections. This year, more than $16 million was spent on judicial campaign ads in 22 Supreme Court races in 10 states, according to the nonpartisan watchdog group Justice at Stake. Judicial hopefuls are campaigning more and more like candidates for any other elective office, and in that vein we found that the claims in their ads adhered to varying degrees of truthfulness.

One ad, for example, falsely implied that a candidate for the Kentucky Supreme Court paroled a rapist who 12 hours later raped a 14-year-old and forced her mother to watch. Another portrayed a Georgia candidate as soft on crime, even though independent reviews found that she usually sided with the prosecutor and was tough on defendants in death penalty cases. And a third invited viewers to believe, wrongly, that an Alabama candidate got nearly $1 million from oil companies to run negative ads against his opponent.

Analysis

Judicial campaigns in many states broke records this year for campaign fundraising and dollars spent on TV advertising, conjuring once again the debate over whether judges should be elected or appointed. Appointment keeps them out of the political fray but also tends to insulate them from those who are affected by their decisions. Election makes them directly accountable to the citizens they serve, but perhaps also to the well-heeled special interests who help fund their campaigns and later turn up in their courtrooms. And for some – as we see here – the plunge into electoral politics is accompanied by a disturbingly un-judicial disregard for facts.

'Bama Broadsides

Alabama ’s judicial races are often among the nation's fiercest, and this year’s contest for the post of Supreme Court chief justice was no different. Though final figures aren’t in, this one was on track to be the most expensive judicial campaign in the nation. Three candidates, including one who was eliminated in the Republican primary, collected nearly $7 million in contributions through late October, with the race's final week of activity yet to be reported. Most of that money went for ads, some of which were missing key context or otherwise distorted the facts.

Sue Bell Cobb, who was trying to defeat incumbent Justice Drayton Nabers, put up a misleading ad towards the end of the campagin claiming that Nabers was "backed by a million dollars of oil money for negative TV ads." The number $990,000 flashes on the screen.

Nabers "Cobb Denouncement 2"

Announcer: On gambling, the difference is clear. As finance director Drayton Nabers fought against the gambling bosses. And Sue Bell Cobb?
Caller on TV interview : Did you really take any money from the gambling bosses and if so, why?
Cobb: I am not sure what they're talking about there, to be perfectly frank.
Announcer: Here's what we're talking about. Thousands from the casino bosses.
Cobb: I'm totally just mesmerized about that.
Announcer. So are we. Sue Bell Cobb. Too liberal for Alabama.

However, the money didn't come from the oil industry,  the ads weren't all negative and none attacked Cobb. The Birmingham News  quoted Cobb as saying at a press conference that the $990,000 figure was the estimated cost of  TV ads run the previous  spring, in the Republican primary, by a conservative group called the American Taxpayers Alliance. Not all were negative: some praised Nabers. ATA doesn't disclose its donors, but according to media reports, in 2001 the group received  61 percent of its budget from Reliant Energy Corp., a large, Texas-based electricity provider – not "the oil industry." The watchdog  group Public Citizen, which obtained a 2002 ATA tax filing, said ATA received millions from the U.S. Chamber of Commerce that year. It's possible that some oil money has seeped into the group's coffers, but there's no evidence of that.

Cobb ran the ad in response to one aired by Na bers that excerpted a television interview in which Cobb was asked by a caller about contributions from "gambling bosses." According to a spokeswoman for Cobb's campaign, the ad used slow-motion to accentuate Cobb's brief pause before she responded, "I am not sure what they're talking about there, to be perfectly frank."

Cobb "False Ads"

TV reporter : Another political TV commercial gets yanked from the airwaves.
Announcer: Drayton Nabers' last ad was false. And his new ad? It's false too. Drayton Nabers, backed by a million dollars of oil money for negative TV ads. He wouldn't sign the campaign ethics pledge. And the paper called him shameful. See the real interview with Judge Cobb.
[On screen: $990,000 superimposed on photo of Nabers ]
Caller to TV show : All the slander wouldn't have never happened if he hadn't started it. I'm definitely going to vote for her.
Cobb: Thank you.
Announcer: And then vote for a real judge.

 Cobb called the ad "edited" and "distorted." Given the way the ad is cut, that's plausible, but unfortunately we weren't able to view a copy of the original interview for comparison. As for whether she took money from "gambling bosses," according  to the Alabama Republican Party, Cobb received "at least $34,000" from gambling interests. Some of that was direct, such as $1,000 from Victoryland Dog Track owner Milton McGregor, but more than $20,000 of it came from political action committees run by lawyers or lobbyists that accept money frorm a variety of interests. The $34,000 also includes the $7,700 value of office space loaned to her campaign by a law firm whose clients include the Poarch Creek Indians, who run casinos on their reservation.

That $34,000, however, would be a drop in the bucket of Cobb's total contributions, which added up to more than $2.6 million. It's a big exaggeration, at the very least, to imply that she's financed by "gambling bosses."

Cobb knocked Nabers off the bench.

Bluegrass Baloney

In Kentucky, state Judge Rick Johnson aired an ad claiming that Bill Cunningham, his opponent for a seat on the state Supreme Court and also a judge, "tried to make six rapists eligible for parole. One of them had been out on parole for only 12 hours when he raped a 14-year-old and made her mother watch.” That's literally true but the extremely misleading ad was denounced by  an independent state watchdog group.

Johnson "Cunningham Denouncement"

Announcer: In 2003 , Circuit Judge Bill Cunningham tried to make six rapists eligible for parole. One had been out on parole for only 12 hours when he raped a 14-year-old and made her mother watch. Bill Cunningham already had tried to reduce their sentences, but our Supreme Court said no. Bill Cunningham said it was folly and a blatant injustice to keep these rapists in prison. Judge Rick Johnson believes that a life sentence means a life sentence. Please, vote for Rick Johnson for Justice on the Supreme Court.

While a viewer might come away cursing Cunningham for paroling a rapist who then assaulted another girl, Cunningham did no such thing. The defendant had been paroled many years earlier by another judge after committing some lesser crime, and that's when the rape occurred. The defendant was convicted and sentenced to life without parole, and eventually, in 1983, became one of the group of six that appealed to Cunningham to cut their sentences to life with  the possibility of parole. Cunningham was willing to do it; they had all been in prison since before 1975 when the Kentucky legislature cut the maximum term for rape to 20 years. He was following the general pattern of other judges at the time. The Supreme Court overruled him, though, on technical grounds. When the six tried asking  then-Gov. Paul Patton for clemency, Cunningham   recommended , in a letter, that Patton reduce the sentences to permit parole.

The nonpartisan Kentucky Judicial Campaign Conduct Committee, formed in 2005  "to help protect the integrity of the judiciary during judicial elections,"  reviewed  the ad and found it wanting: 

Committee: The advertisement improperly suggests or implies that Judge Cunningham wanted to release the individuals involved from their prison terms. The advertisement further implies that one of the individuals actually committed a rape after Judge Cunningham had let him out of prison. The facts do not support these suggestions.

Cunningham won this race.

Jousting in Georgia

About two weeks before the election, the race for a seat on Georgia's Supreme Court took a nasty turn with an ad attacking incumbent Carol Hunstein, put up by a business-backed group called the Georgia Safety and Prosperity Coalition. The ad claimed that the "liberal" Hunstein "substituted her preferences on capital punishment for those who made the law," "voted to throw out evidence that convicted a cocaine trafficker," and "ignored extensive case law and overruled a jury to free a savage rapist." 

 

Safety and Prosperity Coalition "Hunstein Denouncement"

Announcer: On Georgia's Supreme Court, liberal Carol Hunstein has made a habit of ignoring laws she doesn't like. Hunstein substituted her preferences on capital punishment for those who made the law. Carol Hunstein also voted to throw out evidence that convicted a cocaine trafficker; her colleagues overruled her. Hunstein even ignored extensive case law and overruled a jury to free a savage rapist.
If liberal Carol Hunstein wants to make laws, she should run for the legislature instead of judge.

Actually, independent experts consider Hunstein a law-and-order judge. A legal newspaper, the Daily Report, studied her votes in close criminal cases and found  that she "sided with the government 39 percent more often than did the court as a whole." Similarly, an Albany Law Review study of Georgia death penalty cases found  that she was one of the most conservative votes on the court, siding with the prosecution in 75 percent of the capital cases to come before her from 1998 through 2003.

The ad boils down some complex appellate court cases into misleading snippets. All were 4-3 decisions, and in two of the three cases Hunstein was in the majority, not out on a tenuous legal limb by herself. The specifics: 

  • "Substituted her preferences on capital punishment for those who made the law." Misleading. Some viewers might hear this and conclude that Hunstein opposed capital punishment, which isn't the case. According to the Daily Report, Hunstein wrote for a 4-3 majority in a 2001 case called  Dawson v. State  that death by electrocution violated the Georgia constitution's prohibition of cruel and unusual punishment. Actually, the legislature had already abolished electrocution for offenses committed after May 1, 2000. The court's decision broadened that to bar electrocution for offenses committed earlier. Hunstein's ruling was in step with practices nationwide. Since the ruling only four electrocutions have been performed in the U.S. Lethal injection is the most commonly used procedure for carrying out death sentences, in Georgia and elsewhere in the country.
  • "Voted to throw out evidence that convicted a cocaine trafficker." True.  Hunstein was in the minority in a 4-3 decision holding that drugs seized during a traffic stop in this case could be used as evidence against the suspect. There's a long and still-evolving body of case law on exactly how far police can go during traffic stops to investigate other crimes they think the driver or passengers may have committed. Hunstein and two of her colleagues thought that in this case, the officer crossed the line, violating the driver's civil liberties.
  • "Ignored extensive case law and overruled a jury to free a savage rapist."  Misleading. This ad would be closer to the mark if it called the rapist "mentally retarded" rather than "savage." H unstein was in the majority in this case involving a defendant with an IQ of 45. The question before the Georgia Supreme Court was a technical one having to do with whether he'd been properly evaluated for his fitness to stand trial. The minority wanted to send the case back to a lower appellate court for reconsideration, whereas Hunstein and three other justices  said that since the defendant had a "mental age" of about 7, no rational jury could have found him competent to stand trial. It's also not true that the justices "ignored extensive case law." They didn't ignore previous rulings, but cited their reasons for not following those precedents.

Hunstein came back hard with an ad attacking her opponent, Bush administration lawyer J. Michael Wiggins, on extremely personal grounds. She claimed that Wiggins was "sued by his own mother for taking her money," that he sued his sister, and that the sister said Wiggins threatened to kill her.

Hunstein "Wiggins Wrong"

Announcer: We expect only experienced judges to serve on Georgia's Supreme Court. But Mike Wiggins has never tried a case. We expect our Supreme Court to uphold Georgia values, but Mike Wiggins was sued by his own mother for taking her money. He sued his only sister. She said he threatened to kill her while she was eight months pregnant. A judge ordered Wiggins never to have contact with her again. Mike Wiggins. The wrong experience. The wrong values for the Supreme Court.

The last two accusations flow from a rancorous family dispute in which Wiggins was seeking to have his sister removed as guardian of their mother, who was in a coma. He filed an emergency motion with the court to do so, and  maintains that he did so "to prevent the removal of life support from his mother and to preserve her modest financial assets which were needed to support her medical care."
  • "Sued by his own mother" Wiggins contends  that he and his mother agreed that she would file the lawsuit "as a way of recovering money that was stolen by a third party." According to him, he recovered the funds and returned them to his mother, whereupon the lawsuit was dismissed. We've been unable to locate the documents that would help us sort this out.
  • Alleged death threat  It's true that i n a 1999 affidavit, Wiggins' sister said  "Mike has a bad temper...he has been very angry and cruel toward me. He has cursed at me, verbally abused me, and threatened me." She also said that "on different occasions, Mike has said to me, 'Don't cross me,' and 'I am going to kill you.' He has threatened to have me arrested. The last time he did this was last year when I was eight and a half months pregnant with my third child." Wiggins calls his sister's allegations "totally false," and of course we're not in a position to know who's right.

We won't take sides in what is obviously a bitter family quarrel, but we can report that the judge in the guardianship case did grant  Wiggins' request to be named his mother's guardian and ordered Wiggins' sister to repay $12,500 to their mother's estate. The judge also ordered Wiggins to "not initiate any direct personal contact" with his sister, and vice-versa, "in perpetuity." 

Wiggins lost the election, however.

Sources

Wolfson, Andrew, "Rapists: Life without parole unfair punishment," The Courier Journal. 17 November 2003.

Sanders, Matt, "Cunningham, Johnson differ on parole cases," The Paducah Sun. 26 October 2006.

Sanders, Matt, "Johnson defends ads criticizing rapist sentences," The Paducah Sun. 1 November 2006.

Linn, Mike, "Cobb criticizes 'distorted' ads," The Montgomery Advertiser. 25 October 2006.

Rawls, Philip, "Expensive chief justice race becomes no holds barred," The Associated Press. 26 October 2006.

Rawls, Philip, "Democrat Cobb calls chief justice campaign disgusting," AP. 24 October 2006.

Velasco, Eric, "Gambling money, false ad claims fly," Birmingham News. 25 October 2006.

Forsythe, Michael, "Nonprofit links questioned," Bloomberg News. 12 July 2006.

Jacobson, Louis, "Business groups spend freely, gain ground in judicial contests," Roll Call. 26 October 2006.

Linn, Mike, "Judicial panel draws GOP ire," The Montgomery Advertiser. 9 October 2006.

Miller, Jill, "Justice's TV ad a hard hitter," The Atlanta Journal-Constitution, 27 October 2006.

Miller, Jill and Bill Rankin, "Checking on credibility of Supreme Court claims," 3 November 2006.

Riquelmy, Alan, "The new politics of judicial races," Columbus Ledger-Enquirer. 19 October 2006.

Palmer, Alyson M., "Pro-Wiggins group goes negative in latest TV ads," Daily Report. 26 October 2006.

Miller, Jill, "Supreme Court race gets political: Two candidates raise record amount of cash," The Atlanta Journal-Constitution. 13 October 2006.