President Trump’s threats against the judiciary — and his manipulation of the branch altogether — are happening at breakneck speeds. Amid the president’s fear-mongering, however, the public is missing drastic changes that are taking place right under our noses.
There is a quieter, less publicized danger threatening the third branch of government: Our state courts are under attack. As with recent nominees to the federal courts, this attack on state courts means harm for our most vulnerable neighbors, family and friends.
The Courts Have a Big-Money Problem
State courts are being hacked, packed and politicized — one might even say corrupted — by the same big money special interests that long ago captured many of our state and national representatives. In the North Carolina General Assembly, we saw the problem of big money and its connection to anti-LGBTQ attacks firsthand, as big money groups backed by tycoon Art Pope led the charge in pushing North Carolina’s anti-trans “bathroom bill,” as well as repealing our state’s model public financing program for judges.
But in our courts, it is both more outrageous and more hidden: When a judge rules on a case involving one of their donors, the public’s perception of impartiality, independence and just plain fairness suffers.
These concerns are not abstract; they hurt real people. A newly elected Wisconsin Supreme Court judge, previously an aide to former Gov. Scott Walker, is directly tied to the partisan political machinery of the Wisconsin Republican Party. Judge Brian Hagedorn was elected with the help of the Washington, D.C.-based Republican State Leadership Committee (RSLC), a big-money partisan group that has been trying to buy seats on state courts for years now. With Wisconsin’s extremely weak ethics rules, Judge Hagedorn can even hear the cases of the same big-money donors who give secret donations to the RSLC without legal issue. The public may not know who those secret donors are, but you can bet a former aide to the Koch brothers’ ally Scott Walker does. More than that, the big-money partisan machinery that helped him win his seat has no qualms about the fact that he has compared the love between two consenting gay adults to bestiality and helped found a private school that can expel students for being in same-sex relationships.
Wisconsin — as it has been for the assault on unions, redistricting, and the erosion of checks and balances within state government — is the canary in the coal mine signaling a much broader problem in our state courts. Not every state chooses judges through popular election. In Florida, for example, the state legislature weakened its accountable appointment system, in which the governor is restricted to picking from a list of judges deemed “qualified” by the diverse membership of the judicial selection committee. Under the current rules, the governor has packed the judicial selection committee with his own partisan allies. All three recent judges sworn in were grilled by the committee not on their qualifications, fairness or impartiality, but on their membership in the shadowy conservative Federalist Society.
Conservative interests in Iowa, still holding a grudge a decade after the Iowa Supreme Court ruled in favor of marriage equality and against other unconstitutional elements of the legislature’s agenda, have taken it upon themselves to make their famously fair and impartial judicial selection system more like Florida’s. Like in Wisconsin, we see how big-money and anti-LGBTQ forces go hand-in-hand.
In other states that elect judges — such as West Virginia, Pennsylvania, North Carolina and Arkansas — big money and increasingly partisan judicial races are becoming the norm. Outside special interests hiding behind dark money nonprofits run misleading attack ads, and voters are left in the dark as to who is behind them.
Reclaiming Our Courts
The good news is that we can fortify the independence of state judiciaries by implementing simple and common-sense solutions like creating objective ethics rules and providing judicial performance evaluations. The bad news is that too few people are focused on this critical third branch of government that impacts so many facets of our lives. From traffic tickets, to education funding, to clean land and water, to LGBTQ rights, our state courts decide 95 percent of all cases in this country.
Here in North Carolina, judges continued to stand up for our rights against big-money special interests — from bathroom bills, to environmental protections. As a result, these powerful forces have tried just about every kind of attack you can think of on the courts.
But the people of North Carolina responded strongly to recent setbacks. We organized and turned out in incredibly high numbers to let the people know about these attacks, and the simple and effective ways we could make a fairer judiciary. The people of North Carolina then elected new judges and removed several of the legislators who meddled with the state judiciary. Now, many are calling for a return to the voluntary judicial public financing system, which gives people across the board (and without traditional political connections) a stronger say in who sits on the bench.
Similarly, in Pennsylvania, when partisan interests in the state legislature went after the judiciary — threatening to impeach judges who made a ruling they disagreed with — voters responded en masse. They went to the capitol building, called their legislators, and mobilized in the defense of fair and impartial courts. Pennsylvania is now looking to move away from big-money elections and toward an accountable appointment system similar to Iowa’s. An unlikely alliance of good-government groups and state Republicans has come together, and even though there is a long road ahead to legislative change, a “merit selection” bill has advanced to the House floor.
The fact is, big-money special interests, shadowy legal organizations, dark money groups and partisan interests with little respect for the Constitution are paying more and more attention to our state courts at the expense of our rights. It’s time for those who would fight for fair and impartial, diverse and independent courts to make our voices heard in the states.
We need stronger codes of ethics, increased transparency, less influence from big money and an increased focus on a judiciary that is reflective of the diversity of people they serve. As the next round of redistricting nears, the stakes are even higher.
Standing up for fair and independent courts is standing up for LGBTQ rights. It’s standing up for workers’ rights, environmental protections and voting rights. Now is the time to make sure our state courts maintain their independence and serve as a bulwark protecting our rights from hateful ideologies while defending our democracy.