Control of state courts becomes a top political battleground

Justices take their seats to hear oral arguments in a judicial funding case before the Kansas Supreme Court in Topeka, Kan., Thursday, Dec. 10, 2015.

? Much attention is being paid to the U.S. Supreme Court vacancy, but equally partisan battles are being waged for control of state courts around the nation.

In states where voters elect Supreme Court judges, millions of dollars are being spent to reshape the courts for years to come. Judicial watchdogs say spending by national groups overwhelmingly favors judges on the right of the political spectrum, and is mostly aimed at maintaining or improving the courts’ responses to corporate interests while countering state-level spending by labor unions and other interest groups.

Lawmakers are busy too, debating proposals to tip the balance of power by expanding or reducing their court’s size, or making it easier to impeach judges whose rulings upset the legislative majority.

“State courts are the final word on a host of state law issues that have high stakes for businesses’ bottom lines, legislatures’ agendas and the rights of individuals,” said Alicia Bannon with the Brennan Center for Justice at New York University. “Who sits on state courts can have a profound impact on the legal landscape in a state, and special interest groups and politicians are increasingly paying attention.”

State supreme court elections have begun to resemble the rough-and-tumble, high-dollar campaigns associated with races for governor or Congress. Voters in about two dozen states are casting ballots for state supreme court justices this year. Spending for two Arkansas Supreme Court seats alone topped $1.6 million, setting a state record for TV ad buys in a judicial election.

The Judicial Crisis Network, which is spending millions campaigning against President Barack Obama’s Supreme Court nominee Merrick Garland, and the Republican State Leadership Committee were successful in seeing their candidates elected, including a new chief justice who says he’s guided by “prayer, not politics.”

The races were so acrimonious that some Arkansas Republicans are considering ending popular elections for the top court, while some Democrats want more transparency by outside spending groups.

Wisconsin voters also have been exposed to months of TV ads over a Supreme Court seat ahead of Tuesday’s primary. Most of the ads support Justice Rebecca Bradley, a conservative whom Republican Gov. Scott Walker promoted through the judicial system and onto the state’s top court in just three years. Now she’s seeking a full, 10-year term.

The conservative Wisconsin Alliance for Reform has spent at least $1.5 million on TV ads for Bradley, while the liberal Greater Wisconsin Committee has spent at least $345,430 supporting Appeals Court Judge JoAnne Kloppenburg, who would narrow the court’s conservative majority if elected. Both totals reflect Federal Communications Commission records of TV buys analyzed by the judicial campaign watchdog Justice at Stake.

Partisan control of Pennsylvania’s Supreme Court flipped last fall after six candidates for three open seats combined for $12.2 million in contributions and two independent groups spent an additional $3.5 million. Democrats swept all three races, taking five of the seven seats after six years of Republican control.

A race in Kansas is likely to be another big-money battleground. Groups supportive of Republican Gov. Sam Brownback and the GOP-controlled Legislature will be looking to oust four of the five justices up for retention elections in November, enabling Brownback to select their replacements to the seven-member court.

Lawmakers also are weighing changes to their systems of electing, appointing or retaining judges, mostly trying to limit the power of state courts to overrule them.

A bill in Oklahoma would allow voters to overturn some state Supreme Court decisions. Washington lawmakers are weighing whether to not only shrink their Supreme Court from nine justices to five, but also force judges to run in districts rather than statewide. One lawmaker said this could prevent an “intensely liberal concentration” in the Seattle area from diluting the influence of Republicans in the rest of the state.

“There has been an anger and frustration that legislative efforts have been enacted and then within one, two or three years those statutes have been struck down as unconstitutional,” said Bill Raftery, an analyst at the National Center for State Courts, a nonprofit research organization.

After the Kansas Supreme Court ordered the legislature to restore school funding, the state’s senators approved a bill enabling the impeachment of justices who attempt to “usurp the power” of lawmakers and executive branch officials. The House has yet to take it up.

Critics have said the measure would remove the court’s independence by threatening the justices’ careers if the court strikes down a law.

“It totally handicaps the Supreme Court,” Republican state Rep. Steve Becker, a retired district court judge. “It would render the Supreme Court useless, basically.”

Missouri lawmakers also proposed a plan to make it easier to impeach justices.

Increased populations and caseloads require expanding the Supreme Courts in Arizona and Georgia, supporters say; Critics argue that in both states, Republicans simply want to add more judges who will vote in their favor.

The expansion of Georgia’s Supreme Court from seven justices to nine now awaits the signature of Georgia Gov. Nathan Deal, who pushed for the change. Between the expansion and anticipated retirements, Deal could select four more justices before his term ends.

In Arizona, Republican state Rep. J.D. Mesnard said during a committee hearing that expanding the court from five to seven justices would “spread that power out to more people.” He emphasized that Republican Gov. Doug Ducey had not approached him about the bill, and said “I would feel this way regardless of who is on the court or regardless of the decisions that have come down.”

Democratic Sen. Martin Quezada said the plan could be seen as an effort to “pack” the court with conservative justices, and suggested delaying implementation until the next governor takes office. That might not be until January 2019, if Ducey doesn’t win a second term. A Republican colleague noted the irony of a Democrat suggesting such a delay, given the party’s frustration over the U.S. Senate Republicans’ refusal to consider Obama’s nominee.

Mesnard acknowledged that it can be difficult sometimes to separate politics from policy.

“If the shoe were on the other foot, I’ll just candidly say, if it was a different person appointing, I might feel less comfortable,” he said.