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I felt trapped. I had made it to the top of my profession. I was the chief justice of Alabama, the first woman to head the state Supreme Court. It was, for a lawyer like myself, the pinnacle of achievement. And I’d earned it the hard way. To get to the justice’s chambers, I had won the nation’s most expensive judicial race that year. But at what cost?|
I had needed $2.6 million to win—and that money had to come from somewhere. My opponent had raised even more, nearly $5 million in all. It’s terribly awkward and uncomfortable for a judge to have to ask for campaign money. But how are you going to win without it? My biggest concern is how shameful all of this looks to the public.
Two days after my election in 2006, I was with my daughter, Caitlin, on a school field trip when my cellphone rang. A reporter from a national legal publication was calling. Would she ask, I thought, about my election as Alabama’s first female chief justice? Or my plans for reform after holding court in some 40 of Alabama’s 67 counties over 25 years?
“Judge Cobb,” she asked, “how does it feel to be the victor of the most expensive judicial race in the United States this year? And how can you assure the people of Alabama that the contributions you sought are not going to impact how you rule? And how can you convince the people of Alabama not to believe that their courts are for sale?”
I was mortified. And while I was proud of the work I did for the next 4 1/2 years, I never quite got over the feeling of being trapped inside a system whose very structure left me feeling disgusted. I assure you: I’ve never made a decision in a case in which I sided with a party because of a campaign donation. But those of us seeking judicial office sometimes find ourselves doing things that feel awfully unsavory.
No one is immune from these pressures. Not even me.
The reporter’s questions were valid in 2006. And they still are. How do we convince Americans that justice isn’t for sale—when in 39 states, it is?
The phone calls always started with chitchat: How’s the family? How’s your law practice going? It was fun catching up with old friends and acquaintances until the point when I had to steer them toward the real reason I was calling.
“I’d very much appreciate your support for my campaign,” I’d say, religiously avoiding the “ask” and handing the phone to my finance director when it came time to talk real money.
The money was important. In Alabama, you don’t get to mete out justice without spending millions of dollars. I had my money; my opponent had his. The race for dollars reached new heights when a poll showed that I had a real chance of winning despite being a Democrat and the underdog, leading my opponent and his supporters to significantly increase their fundraising. And I had to answer in the best way I could—by trying to raise more money—or risk falling woefully behind. The amounts are utterly obscene.
In Alabama, would-be judges are allowed to ask for money directly. We can make calls not just to the usual friends and family but to lawyers who have appeared before us, lawyers who are likely to appear before us, officials with companies who may very well have interests before the court. And I did.
Where do you draw the line? If you ask for money from lawyers who appear in your court, it’s untenable for you. It’s also untenable for them. I may not have directly asked for money or collected the check, but in my heated campaign to become chief justice, I did reach out to everyone and anyone I could.
The simple fact is: I had to. Judicial elections have become just as overwhelmed by money as all the other contests in American politics, even if we tend to forget that in Alabama and 38 other states, judges have to stand for election. And if you’re running for office, it means you have to raise money. Lots of money. And that meant phone calls. Lots of phone calls.
The money, as it flowed in to me—check after check for as little as $5 from an individual donor to more than $200,000 from the Alabama Democratic Party to $638,000 from a well-known PAC that accepted money from a variety of businesses and law firms—went to the same place that it goes in other political races: to feed the TV ads and the consultants who make them.
Yes, to run for judge means pitching yourself to the public just as if you were running for dogcatcher. Many ads for judicial candidates I’ve seen are downright terrifying, with would-be judges bashing opponents as if they were evil incarnate. These candidates were portrayed as judges who, if given the chance, would release child molesters and murderers and order them to move in next door. Nothing could be further from the truth. But dignity and fairness are too often the first casualties in these kinds of endeavors. How else to explain a campaign ad from the late 1990s in which one candidate for the Alabama Supreme Court, who was revered by many in the bench and bar, nevertheless gave in to pressure from his campaign consultants and ran an ad comparing his opponent to a skunk? The ad opens with the image of the animal and is replaced by a photograph of the opponent as the narrator explains, “Some things you can smell a mile away. … You can smell how bad this man’s ideas are no matter where you live in Alabama.”
I worked for years with former state Representative Jeffrey McLaughlin to eliminate partisan races for judicial office that often make these campaigns overtly and inappropriately political and tend to drive up the amount of money spent by outside groups. And each time—whether the legislature was controlled by Democrats or Republicans—we couldn’t make headway. McLaughlin even recounts how one Republican legislator threatened lawmakers of his own party that if they voted to eliminate partisan judicial races, he would ensure they would face primary opponents in their next campaigns.
Here’s the thing: Donors want clarity, certainty even, that the judicial candidates they support view the world as they do and will rule accordingly. To them, the idea of impartial and fair judges is an abstraction. They want to know that the investments they make by donating money to a candidate will yield favorable results. For businesses, this means judges who are skeptical of, or hostile to, malpractice suits and product liability claims. For unions, it translates to backing those who see business, especially Big Business, as the enemy.
Opposing sides frequently give lip service to seeking justice, but that’s not what they mean. They’re not thinking about the fact that our rulings bind not just those who appear before us but every resident of the state, whether it’s a matter involving an allegedly faulty product or an unpaid worker’s comp claim or a property owner’s fight against a government entity trying to seize his building. No, what these special interests want is simply to win. This helps to explain why judicial elections have become awash in money, with some $275 million spent on such campaigns since 2000, as each side tries to stack the bench with judges it trusts are on their team.
But public trust is eroded when judicial candidates are forced to court big donors and spenders. And outright corruption can occur too, as we saw in Arkansas recently when a former state circuit judge pleaded guilty to having reduced a jury’s negligence award against a health care business in exchange for a campaign bribe. It was no coincidence, it turns out, that the owner of the business had funneled thousands of dollars to the judge’s campaign fund just as the judge had an epiphany: He slashed to $1 million the jury’s $5.2 million award because the original amount “shocked the conscience.” That’s not the only thing shocking about this case.