Wednesday, October 29, 2014

The judiciary is the next right-wing target -- and their weapon is money and lots of it

For over 40 years, there has been a right-wing conspiracy gradually unfolding.  The architect, as we now know, is the former Supreme Court Justice Lewis Powell.  Just prior to his appointment to SCOTUS, Powell drafted a memo to the US Chamber of Commerce outlining the way for corporatchiks to rise back to power.  His now well known targets were education at all levels and the media with the aim of getting public opinion and political power back under corporate control.

Powell was smart.  He understood that sudden actions would not produce the change he envisioned.  Instead, he argued for a protracted battle.  He wrote in his memo: “Strength lies in organization, in careful long- range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.”

In addition to the educational institutions and the media, Powell looked to wielding judicial power as another means of gaining control.  “Under our constitutional system, especially with an activist- minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

The attack on the judiciary is well underway. Thom Hartmann writes:  "Then came the Federalist Society, founded in 1982 with millions of dollars in funding by the Royalist- allied Bradley Foundation, which built a nationwide network of jurists, attorneys, legal scholars, and politicians to indoctrinate a new generation’s legal system with Royalist interpretations: Corporate personhood is real, money is speech, democracy is not sacred, and organized money should always have privilege over organized people." (Hartmann, The Crash of 2016: The Plot to Destroy America -- and What We Can Do to Stop It)

Over the last decade or so, the assault on the judicial system has been facilitated by increasing amounts of dark money.  The application of that money to elections of judges is chronicled here at than two dozen big players were behind nearly $72 million in campaign spending on supreme court races nationwide between 2000 and 2012. They included business heavyweights such as the US Chamber of Commerce and partisan groups focused on specific races in states like Michigan (where an estimated $13-$18 million was spent in 2011-12), Florida (at least $4.8 million in 2011-12), and North Carolina (at least $4.5 million in 2011-12).
The outside money, which has more than tripled over the last decade, primarily funds TV attack ads. In 2012, an ad backing a Republican judicial candidate in Ohio said his Democratic opponent "expressed sympathy for rapists." In the North Carolina Supreme Court primary this year, an ad blasted a candidate who "sides with child predators." The local bar association condemned that ad, as did six former state justices, calling it "disgusting" and "false."

But do these ads work?  Are there practical consequences as assessed by rulings from the bench?  Absolutely!

The total cost of judicial elections ($288 million since 2000) is still nowhere near that of congressional races ($17 billion since 2000). Donors potentially buy a lot more influence, with less money, when they back judges: In West Virginia in 2004, the CEO of Massey Energy spent $3 million on his preferred Supreme Court candidate; that justice later cast the deciding vote to overturn a $50 million verdict against the company—a nearly 1,600 percent return on investment.

Sandra Day O'Connor recognized the problem: "Motivated interest groups are pouring money into judicial elections in record amounts. Whether or not they succeed in their attempts to sway the voters, these efforts threaten the integrity of judicial selection and compromise public perception of judicial decisions."

(Justice O’Connor, Nov. 15, 2007, Wall Street Journal commentary)

If the vast amounts of dark money sends judicial selection along the way of Congressional elections, and it the public grows equally disillusioned and cynical, then O'Connor's prediction will be realized.

"In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution." (

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