In South Dakota, tens of thousands of angry voters signed petitions for a ballot proposal informally known as "J.A.I.L. 4 Judges," enabling ordinary citizens to haul judges into court.
In Pennsylvania, where voters never had rejected a state Supreme Court incumbent seeking re-election, a justice was tossed from office last month because people were furious about a pay raise for state officials, including judges.
And in Wisconsin, a state Supreme Court justice whose opinions angered business interests faces the possibility of a $2 million campaign against his re-election next spring, organized by an interest group based in Washington, D.C.
Far beyond the public rough-and-tumble politics attached to U.S. Supreme Court nominations, formerly obscure and second-tier elections for seats on state courts have become battlegrounds of culture wars, tort reform and other business cost issues, as well as contests that give voters the opportunity to act on popular cynicism and resentment toward the judiciary.
At the same time, judges are under increasing partisan attack for any number of reasons--gay-rights rulings, decisions regarding prayer and, early this year, failure to intercede in the case of Terri Schiavo, the brain-damaged Florida woman who died after her feeding tube was removed by court order. Criticism from many conservatives, including President Bush, about so-called activist judges who legislate from the bench has become part of the political vernacular and the public psyche.
While interest groups--business, labor, trial lawyers--used to devote their efforts and money exclusively to legislatures and executive offices, now they are fine-tuning their strategies and going after judges, the final arbiters of difficult and emotional issues such as tort liability, abortion and criminal justice.
"A lot of the rhetoric on the federal judiciary and the nominations and the labeling of judges as activists is really playing out at the state level," said Cindi Canary, executive director of the Illinois Campaign for Political Reform. "The fact is that in many states we elect our judges, and the rhetoric has provided a context for special interests to enter into."
Judges, many of whom are not particularly comfortable with raising money and trolling for votes like their counterparts in the legislative and executive branches, find themselves in the thick of a fight they did not anticipate.
Special interest groups
"There's a further ratcheting up of these efforts by interest groups, and they have put judicial candidates on the defensive more than ever before," said Jesse Rutledge, editor of "The New Politics of Judicial Elections," which tracks the extraordinary clout of special interest groups in judicial races, which used to be small-budget affairs.
Record spending last year for state supreme court seats, including $9.3 million for one seat on the Illinois Supreme Court, represented a dramatic increase in organized political activity, much of it spent on television advertising. Many of those ads resembled, in tone and content, the often misleading and innuendo-laden spots that are so common in non-judicial campaigns. In one instance a West Virginia justice was described in a TV ad as "too dangerous for our kids." The justice, Warren McGraw, was defeated.
Part of the changing tenor of state supreme court campaigns stems from a 2002 U.S. Supreme Court ruling that struck down Minnesota's restrictions on what judicial candidates may tell voters, such as how they might vote on certain matters. About 40 other states had similar regulations governing the conduct of judicial candidates.
Seventeen states are scheduled to hold elections for their supreme courts next year, and the expectation is that judicial campaigns will look like most other campaigns.
"This is going in a very dangerous direction," said Mike Lawrence, director of the Paul Simon Public Policy Institute at Southern Illinois University. "I'm not sure the perception is there now, but there will be a perception that judges are bought by special interests."
Lawrence warned that the independence and the integrity of the judiciary is at risk.
"Now you have substantial interest groups contributing huge amounts of money and financing television commercials that distort the opinions of sitting judges, ... and now the campaigns for judicial seats are looking increasingly like campaigns for other offices," Lawrence said.
Anti-judicial rhetoric reached a peak in Congress last spring when then-House Majority Leader Tom DeLay (R-Texas), in the wake of Schiavo's death, lashed out at the "arrogant, out-of-control, unaccountable" federal judiciary and suggested that judges who refused to intervene to save Schiavo must "answer for their behavior." Two months earlier, the husband and mother of U.S. District Judge Joan Lefkow were murdered in the judge's Chicago home. While DeLay apologized for his remarks, the criticism of judges, be they federal, state or local, strikes a responsive political chord.
Pay increases protested
The increasing attention paid to judicial races is not exclusively the product of special interest groups. In Pennsylvania, it was voter anger that drove Supreme Court Justice Russell Nigro from office Nov. 8. A firestorm of public protest greeted the news that, in July, state lawmakers had quietly approved large pay raises for themselves, state executive officers and judges. Nigro and Justice Sandra Schultz Newman were the only statewide officials on the November ballot.
Theirs were retention elections, requiring voters to vote either "yes" or "no" for new 10-year terms. Ordinarily, justices win by wide margins. Newman won but gathered only 54 percent. Nigro, with 49 percent voting yes, fell short of a winning majority.
"Clearly, these were the two people in the bull's-eye," said Barry Kauffman, executive director of Common Cause/Pennsylvania.
Further evidence of the political vulnerability of judges can be seen in South Dakota, where judges could see their immunity from lawsuits over their judicial actions stripped away if voters there approve a measure, known as the Judicial Accountability Initiative Law, expected on next November's state ballot. Backers of the petition drive turned in nearly 47,000 signatures last month, about 13,000 more than necessary. The measure would create a special grand jury that would handle complaints of citizens who felt judges violated the law or otherwise abused their judicial discretion.
Generalized antipathy
Donald Dahlin, a political science professor at the University of South Dakota, said there is no particular court or case in the state that prompted the petition drive.
"When you ask people what in particular angers them, they can't say. I think this is part of the general public dissatisfaction with judges across the country and the feeling that they have too much power," Dahlin said.
Allegations of judicial abuse are at the heart of an evolving campaign against Wisconsin Supreme Court Justice N. Patrick Crooks, who is running for another 10-year term on the court in April. Crooks angered business interests with votes he cast on tort reform and product liability cases.
Washington, D.C.-based FreedomWorks, led by former U.S. House Majority Leader Dick Armey (R-Texas), said it is prepared to spend $2 million to defeat Crooks.
"We want to use his election as a platform against the egregious rulings of the court," said Cameron Sholty, who runs the Wisconsin chapter of FreedomWorks. No candidate has yet filed to challenge Crooks. The filing deadline is the end of December.
William Bablitch, a former Wisconsin Supreme Court justice and a spokesman for Crooks, complained that court races have become single-issue contests that ignore the overall record of justices.
