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Bob Edgar

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Citizens United, the Supreme Court, and Our Independent Judiciary

Posted: 03/30/2012 6:03 pm

I'm not a lawyer but I've spent the better part of my adult life working with and often admiring lawyers. There are some bad ones of course, but I've always been impressed by the devotion almost all lawyers share to the law and our system of justice.

So I'm perplexed these days as I consider how justices of our Supreme Court -- lawyers at the pinnacle of that system -- have opened the door to an unprecedented assault on judicial independence.

Millions of Americans now understand how the high court's Citizens United decision, along with other campaign finance rulings, has opened a financial floodgate that leaves government vulnerable to corruption. They see the enormous potential, indeed the likelihood, that the millions of dollars being invested in the 2012 campaign will be repaid in government contracts, laws and policies crafted to benefit a relative handful of campaign donors.

But I also fear that most folks, including many lawyers, haven't yet grasped how money, and the strings attached to it, also is pouring into judicial elections.

And as in races for president, Congress, governorships and other offices, much of the money is being spent by groups that take pains to shield their donors from view.

While our few hundred federal judges enjoy lifetime appointments that protect their independence, there are thousands of state court judges who must periodically face the voters. That means they're vulnerable to negative ad campaigns, often financed by business interests or ideological groups angry about past rulings, and that they must busy themselves raising money from people and groups who may need or want something from them in the future.

"Outside forces are becoming a bigger deal," Georgetown University law professor Roy Schotland, told the Washington Post in a story published Friday. "We're seeing more takeover of the races from the outside." State court judges, he added, "are like sitting ducks."

Florida Tea Party activist Jesse Phillips told the Post that he hopes to raise more than $1 million to unseat three of the state's Supreme Court justices this fall; he has no intention of disclosing his donors, Phillips indicated.

Two years ago, in the first round of judicial elections of the post-Citizens United era, three Iowa Supreme Court justices were swept from office by voters angered over the court's ruling upholding same-sex marriages. A few anti-gay groups poured about $1 million into the campaign to unseat them.

There were similar uprisings across the country, often financed by individuals and groups asserting that judges should pay more attention to public opinion and less to their views of what the law and the Constitution require. That's scary.

"We can make all the strides we can make in the executive and legislative branch, and we can have all that thrown out if we don't have a court that's responsible to the will of the people," Phillips said.

This is the leading edge of a movement that could transform our courts from guardians of the Constitution into subsidiaries of corporations and ideologues.

We'll have the Supreme Court to "thank" for it.

 

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