Another election, another set of bare-fisted battles for state Supreme Court seats. Think the presidential campaign ads were uncivil and misleading? Well…they were. But so were those put on the air by judicial candidates and their backers, who no longer blink at spending in the millions of dollars. Final tallies aren't in yet, but in the last week before Nov. 4, $5 million was spent on ads in these races, more than in 2006, according to figures compiled by the Brennan Center for Justice.
We covered the vicious campaign in Wisconsin earlier this year, and wrote about the battle in Alabama in October. After the fact, we've looked at some of the ads from two other states with particularly contentious races and found more questionable statements:
- An ad run by an out-of-state group in Mississippi accused incumbent justice Oliver Diaz of "voting for" a child killer and a rapist. Diaz actually voted to give one defendant a DNA hearing and to stay the execution of another while the U.S. Supreme Court resolved the constitutionality of lethal injections. A committee set up by the Mississippi Supreme Court condemned the ad.
- Michigan's chief justice produced an ad saying that his opponent ran for a seat on an appellate court so she could pay more winter visits to the beaches of Florida. But this is purely hearsay, and from an unidentified source at that.
- An ad by Michigan's Democratic Party accused the chief justice of dozing off during a hearing on a lawsuit over the deaths of six children in a public housing fire. There are reasons to doubt that claim – which didn't surface until more than a year after the case was decided, just in time to appear in an election ad. Sworn witnesses disagree about its truthfulness.
Wisconsin's Supreme Court contest earlier this year was a spring blizzard of deceptive attack ads. We wrote about it several times, and currently a three-judge panel is reviewing whether the court's newest justice, Mike Gableman, should be penalized for running a highly misleading ad against defeated incumbent Louis Butler. Other court races in ensuing months were relatively free of the kinds of scalding, deceptive claims we saw in the Badger State – or they were until the last few weeks leading up to Nov. 4, when several of them turned nasty.
We posted an article on Alabama's race in October. But the knives came out in other states as well – particularly Mississippi and Michigan. We think they're still worth noting in view of the escalating sums spent on ads in judicial races and their often savage tenor.
Law Enforcement Alliance of America Ad: "Protect Our Families"
Announcer 1: We need judges to protect our families in Mississippi. But when a 6-month-old child was raped and murdered…
Announcer 2: Supreme Court Justice Diaz is the only one voting for the child's killer.
Announcer 1: An elderly woman kidnapped, beaten and raped.
Announcer 2: Diaz, the only one voting for the rapist.
Announcer 1: A 20-month-old baby dead from blows to her head.
Announcer 2: Justice Diaz votes to overturn the baby-killer's conviction.
Announcer 1: Log on and tell Justice Diaz to protect Mississippi families, not criminals. Paid for by Law Enforcement Alliance of America.
Paid for by Law Enforcement Alliance of America. [/TET]
Special Committee on Judicial Election Campaign Intervention: These ads violate the Code of Judicial Conduct with respect to judicial elections in that they urge a course of action which is not in keeping with the duty of a justice of the Supreme Court to decide the legal issues on an impartial basis. A judge is sworn to uphold the law and adjudicate cases in accordance with law, and not ignore the law based upon the popularity or infamy of those who appear before the court or the heinousness of the crime of which they are accused. Accordingly, the Special Committee condemns these ads as they urge a biased rather than an impartial court system.
Michigan Democratic State Central Committee Ad: "Sleeping Judge"
Announcer: One story's a fairytale. The other a nightmare. The fairytale, Sleeping Beauty. The nightmare, the sleeping judge, Cliff Taylor.
Woman #1: Judge Taylor fell asleep several times in the middle of our arguments. How could he judge based on the facts when he was asleep?
Announcer: Taylor was voted the worst judge on the State Supreme Court. And fellow judges called for an investigation of Taylor for misconduct and abuse of power. The sleeping judge, Cliff Taylor, he needs a wake up call.
Paid for by the Michigan Democratic State Central Committee. [/TET]
The Dec. 1, 2000 fire in a city public housing unit was big news at the time; none of the children was older than seven. Five days later, Geoffrey Fieger, a well-known trial lawyer representing the estates of the children, filed suit against the city and Detroit's public housing commission for $800 million.
The state's high court dismissed the case by a vote of 4-3 (with Taylor in the majority) in April 2007, ruling that the defendants were immune from liability.
The rest of the ad is largely true. In late 2007, Michigan Lawyers' Weekly hired Mitchell Interactive, a company that specializes in polling and opinion surveys, to ask attorneys who had argued at least one case before the court what they thought of the state's Supreme Court justices. Based on the 79 assessments that were completed (about a 10 percent return rate), Taylor scored lowest of the seven justices on four of eight "judicial characteristics": preparedness, efficiency, thoroughness of opinions, and overall knowledge of the law. He also ranked lowest when the judges' scores on all eight characteristics were added up and averaged, though when the lawyers were asked directly to name the worst of the justices, Taylor was second-from-the-bottom.
An Oct. 17 article in the Detroit Free Press called Taylor "the state's most bulletproof Republican" and said his path to a second term "seems unobstructed." But the "sleeping justice" ad delivered a real blow and may have been more responsible than any single other factor for Taylor's loss, the first time a Michigan chief justice has ever lost a reelection. "That ad had enormous impact, not so much in the legal community but in the non-legal world," said Todd Berg, the editor of Michigan Lawyers' Weekly.
Cliff Taylor Ad: "Hathaway Unqualified"
Announcer: Top newspapers and police groups endorse Chief Justice Taylor over unqualified Hathaway. 'Detroit Judge Hathaway is not a reasonable or qualified alternative.' 'She is not well qualified for the high court.' 'No compelling reason to make a change.' 'Hathaway has done nothing to distinguish herself.' She favored the proposal that was designed to tilt State government in favor of one political party. Hathway campaigned for Court of Appeals so she could spend most of the winter in Florida. Re-elect Chief Justice Taylor.
Paid for by the Committee to Re-Elect Chief Justice Taylor. [/TET]
Taylor was beaten by Democratic judge Diane Hathaway, but not before she was also tarred by a dubious attack ad. One of Taylor's spots claimed that she tried to win a Court of Appeals seat in 2006 so she could hang out at a Florida beach in the winter. That's a claim built purely on hearsay evidence that would never be allowed in court.
Its only basis was a editorial in the Michigan Chronicle, a Detroit weekly, endorsing Hathaway's opponent in the appeals court race. The sourcing for the allegation is extremely vague; this is the whole sentence from the article:
Michigan Chronicle, Oct. 25-31, 2006: A Detroit based minister said Judge Hathaway said that one of the reasons she is campaigning for a seat on the Court of Appeals is so that she would be able to spend most of the winter on the sunny beaches of Florida.
Eggert, David. "Dems Run Negative Ad against Michigan GOP Justice," The
Associated Press, 21 Oct. 2008. Associated Press, 21 Oct. 2008, "Analysis: Dems say Taylor fell asleep during case"
Jones, Terry L. "Pierce Unseats Diaz on Court," Hattiesburg American, 5 Nov. 2008
Lee, Anita. "Committee denounces judicial ads," The Biloxi Sun Herald, 31 Oct. 2008
Mitchell, Jerry. "Panel: Attack ad not truthful," The Clarion-Ledger, 30 Oct. 2008.
Finley, Nolan. "State GOP got outworked, outspent," The Detroit News, 9 Nov. 2008.
Ratings of Michigan Supreme Court Justices, Michigan Lawyers Weekly, Dec. 2007.
Findings of the Special Committee on Judicial Election Campaign Intervention. 29 Oct 2008.