Fw: What Price Justice?

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----- Original Message ----- From: MARTHA

Craig

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Sent: Sunday, July 29, 2001 9:16 PM

Subject: "What Price Justice?"

Sunday | July 29, 2001

What price justice? Influx of money undermines public faith in judicial system 07/29/2001 By / Special Contributor to The Dallas Morning News While Republicans and Democrats wrangle about President Bush's nominees for federal judgeships, they are missing a larger issue – the integrity of our judicial system. More than any other time in recent memory, Americans have reasonable doubts about the integrity of the judicial decision-making process, a process that is shrouded in secrecy.

What price justice?• Center for Public Integrity • Extra content index

In a 1999 poll conducted by Indiana University for the National Center for State Courts, 79 percent believed that "judges are generally honest and fair in deciding cases."

However, 66 percent thought that "when a person sues a corporation, the courts generally favor the corporation over the person." And 81 percent of the public believed that "judges' decisions are influenced by political considerations."

These poll results are consistent with my personal experience. When I was a network television journalist, I had the privilege of meeting or covering some of the most respected courtroom lawyers and judges in America, from famous attorneys and Boies to courageous Alabama federal judge and Supreme Court Justice Day O'Connor.

I also watched or investigated some of the worst.

Of course, the Florida election debacle last fall didn't exactly disabuse anyone of the notion that judges are influenced by political considerations. The U.S. Supreme Court's intervention – 5-4 along ideological lines – was highly controversial, and the stated reasoning and timing suspect.

How could the court not be concerned about the equal-protection-under-the-law issue raised by W. Bush back on Nov. 22, but then use that same argument weeks later, on Dec. 9? How could the court halt the Florida recount and then days later announce that there was no time to do a recount under a proper, single standard?

Reasoned arguments are the bedrock of the credibility and legitimacy of our judicial system. In this case, the court majority's opinion and stated reasoning were not convincing to millions of Americans.

But other ethics issues are beginning to compromise the reputations of judges and the entire judicial process.

Raising campaign cash

For example, the most serious integrity issue involving the U.S. judicial process today is that most state judges are elected. Which means, of course, that they are raising ever-larger sums of campaign cash – millions of dollars – from litigants and attorneys bringing cases before them. Thirty-nine states have judicial elections at some level; 87 percent of state appellate and trial judges face direct or retention elections.

Seventy-eight percent of the American people believe that "elected judges are influenced by having to raise campaign funds," according to the 1999 National Center for State Courts' poll.

Just last week, an American Bar Association committee recommended that judicial candidates be financed by public, rather than private, money.

I don't think Americans would approve of an auction process in baseball, in which both teams could pay the umpires directly. How can we hope to have equal justice under the law if judges are selected and elected based on money from economic and legal interests with business before the courts?

According to a 1999 PBS Frontline documentary called "Justice for Sale," the costs of judicial elections have increased exponentially in recent years. For example, Los Angeles Superior Court campaign expenditures increased at least 22-fold from 1976 to 1994.

In Texas, pay to play

For years, no state has had a more notorious reputation for a pay-to-play judicial process than Texas. According to a recent study by a public-interest organization, Texans for Public Justice, the 10 Texas Supreme Court justices who faced an election from 1994 through 1998 raised $12.8 million for those political campaigns. Fifty-two percent of the money they raised came from lawyers, law firms and litigants who filed appeals with the high court during the same period, the group said. The justices were "four times more likely to accept an appeal filed by a campaign contributor than they were to accept an appeal filed by a non-contributor." They were "10 times more likely to accept petitions filed by contributors of more than $250,000 than petitions filed by non-contributors." And the court was particularly friendly toward petitions filed by Texas Chief Justice Tom ' old law firm, more than any other major appellate firm. "Baker Botts – one of just two firms that contributed more than $250,000 to the justices – enjoyed an astonishing petition-acceptance rate of 74 percent."

In a 1999 survey conducted by the Texas Supreme Court and the Texas State Bar, 79 percent of the lawyers in Texas who appeared before the courts believed that campaign contributions affected the judge's decisions.

Nationwide problem

But this is a nationwide problem. Helen Lavelle, media consultant for a Pennsylvania judge who won re-election in 1999, has said that, "We sell a judge the same way we sell anything. It's unfair. People are ending up with a chance to be on a bench who have no business being there." Florida Circuit Court Judge o Pineiro told The Nation, "I was told not to despair about raising the much-needed cash, as there would be many attorneys willing to give me money solely because they would be appearing before me in court. This I felt raised a moral dilemma. But I was told not to worry, as I would never actually ask attorneys for money, I would simply ask attorneys to ask other attorneys to give me money. This, I was told, would be ethically correct, even if utterly contrary to the legal principle that an agent's actions on behalf of a principal are deemed to be the actions of the principal."

This issue has been studied and debated inside legal circles for decades. Many fine lawyers and judges have opposed cash-for-judges for years and years. But the unvarnished reality is that there is no incentive for the most powerful interests in this nation to curtail their access to and influence in the courts. And so the quietly corrupt status quo continues.

Aloofness to ethics

At times, federal judges have displayed a disconcerting aloofness when it comes to individual ethics concerns. In 1997, Insight Magazine reported that Supreme Court Justice Ruth Bader Ginsberg had participated in more than 20 cases involving companies in which her husband, Ginsberg, owned stock. A strict reading of federal statutes suggests that she might have violated federal law by not recusing herself from the decision-making process. After revelations about the situation, Ginsberg promptly and correctly sold the stocks in question.

Other federal judges have had similar potential conflicts of interest. We recently witnessed a rather garish, unabashed attempted money grab by Supreme Court Chief Justice Rehnquist. He backed legislation that would have allowed federal judges to receive outside honoraria for speaking engagements. If judges' compensation is an issue today, Congress and the president ought to address it. But speaking honoraria for federal judges from special interests – something forbidden for Congress – is an outrageous proposal.

Fortunately, it died. But what was the chief justice thinking?

Another federal judge, Zloch of Florida, initially opposed efforts by APBnews.com to post the financial disclosure forms of federal judges on the Internet and took matters into his own hands. As chair of the federal judiciary's committee on financial disclosure, he temporarily suspended all public access to the forms.

Fortunately, Justice Rehnquist intervened and laid down the law – public records are public records, regardless of venue – and APBnews.com was allowed to proceed. But shortly afterward, the chief justice expressed his support for reducing the amount and specificity of the financial information that federal judges must disclose.

Free seminars

Finally, there is the issue of all-expense-paid seminars and trips, paid for judges by special-interest groups with ideological or financial agendas, such as conservative, property-rights organizations. A Washington-based group called Community Rights Counsel, which has a Web site called www.tripsforjudges.org, found that more than 230 federal judges participated in "legal education" seminars between 1992 and 1998, paid for by corporations and organizations interested in pending legislation. In general, federal officials take thousands of privately funded trips all over the world each year, all sponsored by groups hoping to get something from the public-policy, decision-making process – with the ostensible reason being saving the taxpayer money. Journalists have keyed in on congressional trips and largely ignored executive-branch gigs and, until recently, judicial jaunts.

The Judicial Conference, the organization that sets policy for federal judges, has opposed any legislation banning privately funded seminars, but it has recommended that judges avoid any seminars funded by current or potential litigants. That would include just about every possible trip sponsor.

These ethical concerns are magnified by the nature of judicial decision-making. Judges deliberate in private, and much of their decision-making process is out of plain view. That is understandable on some level, certainly.

But at the same time, reasonable public access to information, openness and accountability are also the attendant responsibilities of any public servant, including judges. Donning a black robe does not automatically connote civic virtue and exemption from the requirements of public life.

Perhaps former Supreme Court Justice Louis Brandeis said it best: "Sunlight is the best disinfectant."

MM

Martha Murdock, DirectorNational Silicone Implant FoundationDallas, Texas Headquarters

Purposes for which the Corporation (NSIF) is organized are to perform the charitable activities within the meaning of Internal Revenue Code Section 501©(3) and Texas Tax Code Section 11.18 ©(1).Specifically, the Corporation is organized for the purposes of education and research of Silicone-related disease.