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.

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.

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."

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.

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."

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.

• "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.

- by Viveca Novak

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