Judicial Selection - Curing the GOP Infection of the Appellate Courts

Awhile back, I had the opportunity to make a rather focused post on the sad state of racial diversity in Alabama’s appellate court system. Of course, that continues to be an overarching problem. All the justice in the world at the trial level doesn’t do any good, if it can be vacated on appeal. But the news this week has shown that much more remains broken in Alabama’s judicial selection process.

Granted, the imbroglio at the State Democratic Executive Committee (and the Alabama State Bar) over the nomination of Kenya Lavender Marshall is something of a one-off situation. It isn’t often that someone with that sort of matter pending ventures a judicial race, and the mix of politics, bar proceedings, and the law of replacing a disqualified judicial nominee had SDEC members, lawyers, and the occasional blogger all reaching for their copies of the party bylaws and other references.

What concerns me today is the wide range of problems with judicial elections in Alabama generally. And unlike many reform-minded writers, I am not engaged in some altruistic venture to produce enlightened philosopher-kings (or queens) in black robes. I am more concerned with the strong Republican bent the judicial branch has taken, especially at the appellate level. This Republican domination has permitted the ridiculous larceny of hundreds of millions of dollars from Alabama taxpayers by corporate behemoths like Exxon and pharmaceutical giant GlaxoSmithKlein.

The Exxon case would have any Alabama voter mad, who knew about the facts. Simply put, Exxon (now ExxonMobil), which has to pay the state royalties on natural gas it extracts from the waters of Mobile Bay, lied to the State of Alabama about how much it had gotten from the wells at issue. After a jury trial in 1999, a jury found that Exxon had lied to the State officers responsible for collecting the royalties, and assessed punitive damages of $3.5 billion. The Alabama Supreme Court, which by 2002 had a Republican majority, threw out that verdict on the specious grounds that some Exxon documents were “privileged” and should not have been shown to the jury. (I wonder what the result would have been if a Democratic officeholder had claimed his documents were “privileged”?) The case was tried again in 2003, and this time the jury really saw the extent of Exxon’s lies. The second jury rendered a verdict against Exxon - and for the people of Alabama - in the amount of $11.2 billion. Following U.S. Supreme Court rulings about punitive damages, the trial judge reduced the award to the same $3.5 billion that had been awarded in the earlier case. No matter, said our GOP court in 2007, the State should have been psychic and known the figures provided by Exxon were lies. It threw out the entire punitive damages award, and ordered Exxon to pay only the actual shortfall in its royalties. (It had “only” ripped us - the taxpayers of Alabama - off for over $51 million.) Exxon laughed all the way to the bank, making $40.6 billion in profits in 2007, and $45.2 billion in 2008.

Last year, in another Supreme Court decision (the only dissenting vote was Democratic Chief Justice Sue Bell Cobb), the Court reversed $328 million in fraud verdicts against GlaxoSmithKlein and other big pharmaceutical companies, who had been caught fraudulently overcharging the State for prescriptions paid for by taxpayers through Medicaid. Again, it’s fair to say that the Supreme Court ruled that the State’s employees should have had psychic powers and known the numbers were cooked. (Memo to Future Governor Sparks: make Miss Cleo your Finance Director.)

How did Alabama’s highest courts get to be such a sanctuary for Fortune 500 thieves? The best place to trace this mess is to 1994, when the Business Council of Alabama brought Karl Rove to Alabama to run Republican judicial campaigns. With the help of ethically questionable rulings from Reagan and Bush appointees to the Federal courts, Rove was able to oust Democratic Chief Justice Sonny Hornsby. In following cycles, the GOP began to chip away at the appellate courts, ousting experienced judges with decades of service and high regard in the legal community. Some were replaced by Republican Party hacks, whose resumes were so thin, you would have hesitated to hire them to defend a speeding ticket.

Of course, the “genius” of Rove so acclaimed by the punditry was nothing of the sort. It was just a preview of his modus operandi in the two presidential campaigns of George W. Bush: dump tons of Wall Street money and forget ethical scruples.

There has been a lot of reformist talk across the nation about spending on popular-election judicial races, and Alabama has been one of the foci of that comment. To be fair, some of the talk has come from across the political spectrum, and Republican Justice Champ Lyons of the Alabama Supreme Court has called for reform of judicial selection and campaign finance. (Which is easier to do, I suppose, when you are age-limited to your final term in office, as he is.) Recently, a signal study was released by the Brennan Center for Justice at NYU, and other groups, calling for reform of judicial selection and campaign finance. In the foreword, former Supreme Court Justice Sandra Day O’Connor said:

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justice, three out of every four Americans believe that campaign contributions affect courtroom decisions.

More telling for our present purpose were the state-by-state analyses, which broke out the largest contributors from each state holding judicial elections. The report on Alabama noted that:

One of the first states to experience the new politics of judicial elections, Alabama also has been the most expensive. Of the $40.9 million raised by Alabama Supreme Court candidates from 2000 through 2009, $22 million, or 53.7 percent, came from just 20 groups. Eight of the 10 biggest spenders were business or conservative groups, led by the Business Council of Alabama (No. 2, at $4,633,534) and the Alabama Civil Justice Reform Committee (No. 3, at $2,699,568), which was the leading funder of 2008 winner Greg Shaw. (emphasis added)

The report went on to note that the two anti-consumer, anti-worker groups named, by themselves, outspent the Alabama Democratic Party’s efforts on behalf of our judicial nominees - even before the other six of the top eight kicked in.

So what do we, as Democrats, do about this tidal wave of corporate cash? Is there any way to counter it, or are we doomed to see the laws enacted by a Democratic Legislature “interpreted” into nothingness by a Republican Supreme Court? Are we doomed, time and again, to have a Supreme Court that rubber-stamps Bob Riley’s War on [Bingo] Employment, or that steals elections for GOP candidates (as it did by blocking Siegelman’s 2002 recounts)?

Even though we are late in this cycle, and the three Supreme Court seats up this time make it an important year, it’s not too late to take some positive steps this round. In fact, there’s no reason we shouldn’t expect to do well in this year’s judicial elections. The careful reader will have already seen the prescription in the analysis above. For the benefit of those who missed it, I will repeat myself:

The Exxon case would have any Alabama voter mad, who knew about the facts.

Simply put, the key to winning these judicial races is putting the facts of Republican rulings into the minds of voters, and to do so with the sort of repetition and simplicity that assures the facts will stick there. This is something we simply haven’t been doing in judicial races. One key example of this was the negative run against current Justice Shaw by the campaign of Judge Deborah Bell Paseur in 2008. This was the principal ad that was run to point out Shaw’s funding by the oil industry:

This ad violates some of the “Negative 101” rules of running negative. First and foremost, it’s too vague and unfocused. While its vaguely menacing visuals make a good backdrop, there’s no simple message that can be digested by a semi-attentive voter. Connected with that is that there is no mention whatever of the Exxon decision, which had been handed down just a year earlier. (Keep in mind, the record-high gas prices of 2007 were still on voters’ minds in 2008, as well.) The ad should have featured the Exxon logo, and text mentioning the words “Republican,” “fraud,” and “taxpayers.” Never mind that Shaw wasn’t on the Supreme Court when that decision came down - does anyone really think that would have stopped a Republican ad from attacking Judge Paseur about a supposedly “liberal” decision? Shaw is part and parcel of the same movement, and it would have been totally fair to tar him with the same brush. Finally, the ad made a tactical error by coming out of Judge Paseur’s committee. That gave Shaw an excuse to go negative on Paseur, and to whine about her “firing the first shot.” Negative always works better when it’s put up by “The Committee for Mom and Apple Pie,” or, in this case, “Committee Against Big Oil” or some such. Witness the effectiveness of the “True Republican PAC” in derailing the Bradley Byrne campaign this year. (I don’t want to sound like I am picking on Judge Paseur. Her campaign is simply the most recent, and her positives - like the “Amazing Grace” ads - were brilliant.)

Alabama is home to some of the best plaintiff’s lawyers in the country. I sometimes stand in awe of their ability to persuade 12 men and women in a jury box to award the sums they do for fraud and wrongdoing, despite the constant media hogwash about “excessive verdicts.” Somehow, those persuasive gifts haven’t found their way to the ballot box. Although the plaintiff’s bar has historically been the largest contributor to Democratic judicial candidates, and their support has been generous in terms of dollars spent - well, 19 Republican appellate judges to 1 Democrat is a track record that speaks for itself.

A few things make this year’s campaign different from the Paseur-Shaw race in 2008, the first being that we have three Supreme Court seats up, not one. This will require us to choose our weapon carefully. When you’re being charged by a thick-skinned rhino, you don’t want a shotgun whose pellets will bounce off his hide. You want a carefully aimed rifle that will penetrate. If we spend our limited resources on limited GRP buys attacking each Republican nominee individually, we will be swamped by the overwhelming financial resources of the Business Council and its allies. Our negative should accordingly focus on the concept of “Republican judges,” in line with some of my earlier preaching on the issue of Selling the Party Brand. It’s going to be hard for our two (very well qualified, but still) rookie candidates, Rhonda Chambers and Tom Edwards, to gain traction against well-funded GOP opponents otherwise. And thank goodness, we have Judge Paseur running for Civil Appeals, and she will benefit from those efforts, too.

In passing, I do want to note that Judge Parsons has done a good job of getting free media in commenting on Justice Parker as “lazy.” Many lawyers, even those with Republican clients, have grown tired of the interminable delays in getting decisions in cases that are assigned to Parker to write the Court’s opinion.

At the end of the day, it comes down to this. I know that some people don’t like to run negative. But negative works, and no matter how moderate, or how Christian, or how ethical a Democratic candidate is, the GOP will continue to call him or her a “liberal,” “gay-loving,” “anti-gun,” “pro-high-tax” candidate, along with our entire Party. If we do not tell the truth about them, their lies will win. Nor should we be dissuaded from the fight by the size of their money bag. When the 180-pound cornerback wants a tackle more than the 230-pound running back wants another yard, my money is on the cornerback every time.