2010 State Court Election Preview

by Gary Marx

Conservatives may wake up Wednesday morning to learn that the Republican party controls a majority of the U.S. House and, potentially, the U.S. Senate. What may come as more of a surprise is if we also learn that judicial conservatives have won a number of extremely important state judicial elections.

In a number of states, voters could change the philosophical balance of their states’ highest courts. In several others, they will have the opportunity to make the strongest statement in decades regarding methods of judicial selection. Here is a run-down of the elections I will be watching. Check back here for results on Wednesday.

Question One
asks Nevadans if they want to trade their current method for selecting judges — direct elections — for the lawyer-dominated commission method that Justice O’Connor and George Soros prefer. Polls have consistently shown very little support for the measure, but, as Justice O’Connor’s 1:00 a.m. robo-calls proved, supporters of Question One will go as low as necessary to give trial lawyers control of the courts.

Five candidates are vying for two seats on the Michigan Supreme Court. Since the Court is currently divide 4–3 in favor of liberal judicial activists, the philosophical balance of the Court could flip.

In 2008, liberals — led by trial lawyer Jeffrey Fieger and Democratic chairman Mark Brewer — set their sights on Chief Justice Cliff Taylor, a conservative heavyweight. Justice Taylor was ultimately unable to overcome the Obama wave and a devastating false TV ad that purported to show him sleeping on the bench. His loss gave liberal judicial activists a majority, which, as this Federalist Society white paper details, had an immediate and dramatic impact on the court’s jurisprudence.

Sensing that they had a good thing going, and eager to increase the size of their activist majority, Brewer and Co. decided to use the same tactics this cycle to unseat another conservative heavyweight, incumbent Justice Robert Young. In response to outrageous charges that he is a racist, Justice Young has released a TV ad featuring his mother explaining that her son’s own experiences as an African American shaped his commitment to applying the law faithfully.

While Justice Young is fighting to retain his seat, conservatives are hopeful that they can also regain the court’s majority. Incumbent Justice Alton Davis was recently appointed to the Supreme Court by Governor Granholm after a surprise retirement, and judicial conservatives believe Judge Mary Beth Kelly can beat him. The latest poll shows Young and Kelly in a good position to win, but negative ads and the uncertainty of judicial polls in the state will make this one worth staying up for.

The Illinois Supreme Court is currently divided 4–3 in favor of liberal judicial activists. Justice Thomas Kilbride, one of the activists, is running for “retention” and must garner 60 percent of the vote in his district to keep his seat. Judges ordinarily win these retention elections, in large part because it is a yes/no election with no opponent to provide a contrast. But this is not an ordinary election cycle and Justice Kilbride has given judicial conservatives plenty of reason to oppose him. Most importantly, Kilbride was perceived as a leader in the narrow majority that overturned the state’s cap on damages in medical malpractice cases.

Justice Kilbride is feeling the heat. According to this piece on BigGovernment.com, he used his latest campaign mailer to portray himself as a conservative Republican, probably because he can’t reach 60 percent without peeling off a significant number of Republicans in the district. But the GOP has responded by pointing out that no conservative Republican would have raised mountains of cash from unions and Mike Madigan, the Democratic speaker of the Illinois House. Why is the seat so important to them? Well, it could have something to do with redistricting.

Iowa, Kansas, & Colorado:
A total of ten supreme court justices are running for “retention” in these three Missouri Plan states. In each state, the highest court has come under fire for issuing activist rulings that are radically out of step with the state’s laws and constitution.

In Iowa, the Supreme Court unanimously imposed gay marriage on the state, and the justices are increasingly viewed as tools for trial lawyers to enrich themselves by undermining traditional theories of civil liability.

Denis Boyles recently described the stakes in Kansas:

In just the last five years, the state’s supreme court has bankrupted the state by usurping the legislature’s role and massively overfunding an inefficient, big-government, union-dominated education bureaucracy. It has sheltered abortion providers from scrutiny by harassing state investigators sworn to enforce Kansas law. It has interpreted the state constitution, which forbids gambling, as meaning the state of Kansas can operate casinos all over the state because, um, they sell lottery tickets. It reliably mandates spending increases and coddles liberal lawyer friends while making some of them rich. Some of its wacky judicial decisions — including a hilarious rant by Justice Carol Beier, described here — are so embarrassing the justices condemn them themselves.

And in Colorado, the Clear the Bench campaign accuses the Supreme Court of “Aiding and Abetting” the following:

— Unconstitutional Property Tax Increases (Mill Levy Tax Freeze)

— Unconstitutional elimination of Tax Credits & Exemptions (tobacco tax, “Dirty Dozen” taxes)

— Unconstitutionally re-defining Taxes as Fees (Colorado Car Tax, Ritter Gun Tax)

— Unconstitutional expansion of eminent domain property seizures (Telluride Land Grab)

— Unconstitutional usurpation of legislative power (judicial redistricting, school funding)

Across the country, since Missouri first adopted the merit deception method for choosing judges, only a tiny handful of judges have failed to win retention. But, as I already said, this is not an ordinary election cycle, and we are not dealing with ordinary judges who embrace the traditional role of courts in our society. Whatever the results, I expect the voters in Iowa, Kansas, and Colorado to continue fighting to reform their judicial selection method in an effort to avoid similar rogue judges in the future.

Other supreme court races to watch:

In Alabama and Texas, judicial conservatives enjoy solid majorities on the state supreme courts, and my sources tell me that the conservative incumbents are in a good position to win reelection. In North Carolina, the winner could determine the philosophical balance of the court. Barbara Jackson has worked to position herself as the candidate of choice for judicial conservatives, but she faces a formidable opponent in Judge Robert Hunter.

Gary Marx is executive director of the Judicial Crisis Network.

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