When Pam Baschab first started campaigning to be a judge in Alabama, back in the 1980s, it was literally a family affair. “My husband was a big help. My friends, my 36 cousins,” Baschab laughs. “I have 36 first cousins.”
Baschab remembers her whole campaign costing around $20,000. She made speeches at church potlucks and county fairs. She would stand at the podium, hold up a house window, and say, “This is my window of opportunity. We need to get some women in there, and we need to get some Republican women in there.”
I know, it’s so folksy. And it worked. She won.
So fast forward to 2000. Baschab’s been a judge around 12 years and she decides to run for the Alabama Supreme Court.
“You know when you are going to run for office basically, there are certain power brokers that you have to go see,” Baschab says.
‘All that matters is the money and you’re not going to get it.’
Baschab’s a Republican, so she has to go see Winton Blount, the head of the Republican party and the president of the Business Council of Alabama — the local wing of the Chamber of Commerce. Baschab visited Blount at his mansion in Montgomery, the state capital.
“And when I went to see Winton Blount — he just passed away I think, God rest his soul – and I told him I wanted to run for the Supreme Court,” Baschab remembers. “He said, ‘No, no we have already decided who is running and you won’t be it.’”
“And I said, ‘But, why?’” Baschab remembers Blount’s answer, “Because, there was a business in Alabama, where a judgment had been rendered by a jury out of my court in Baldwin County. They had gotten less than they had wanted, but they had gotten a multimillion dollar judgement. ‘And,’ he said, ‘Because that verdict came out of your court, you will never be on the Alabama Supreme Court.’”
Baschab says she tried to protest. “I said, ‘My husband is the chairman of the Republican Party here in Montgomery County…’We started the first Republican women’s group in Baldwin County.’ And he’d say, ‘All that matters is the money and you’re not going to get it.’” Baschab says, ultimately, Blount was right.
In the decade between Baschab’s first grassroots campaign and her attempt at the Supreme Court, judicial elections radically changed. They’d become a lot more expensive and partisan, and it’s totally transformed how judges do their job in Alabama and other states where they’re elected.
Electing judges was originally a reform measure. This was America in the mid-1800s. States were joining the Union, and many decided the most democratic choice was to elect their judges. Nine states, including Alabama, opted for partisan judicial elections. For decades, judicial elections were quiet and inexpensive. In the South, Democrats controlled the court, because historically they always had.
But in the 1980s and 1990s, juries started awarding big verdicts in tort cases.
Tort’s a legal term – it’s when a person or company has to pay damages for harming someone. That money is supposed to do two things. One, compensate the person harmed. And two, discourage the same thing from happening again.
As verdicts climbed into the millions and billions, the business community looked for a way to turn them around. They focused on electing judges, specifically Republican judges, who would be on their side. Business groups funneled millions into election campaigns. Plaintiffs attorneys responded by giving millions to Democratic candidates.
Some of the money pays for mailers and campaign events, but most of it is spent on TV ads.
Then there are attack ads, like this one, which begins with the silhouette of a hand clutching a knife.
Or this one, from Iowa that was paid for by an outside group that opposes same sex marriage.
The judges attacked in these ads ruled on complicated, controversial cases, but their decisions were shrunk to a sound bite.
Trying to ignore the pressures of an election, Kraus joked, was like “trying to ignore a crocodile in your bathtub when you go to shave in the morning.”
Former Justice Otto Kraus of the California Supreme Court admitted these type of attacks sparked fear into judges. Trying to ignore the pressures of an election, Kraus joked, was like “trying to ignore a crocodile in your bathtub when you go to shave in the morning.”
But some have embraced elections, arguing judges should care how the public views their decisions. In Alabama, former Justice Harold See was one of the first judges elected in these new ultra-partisan judicial campaigns.
“I won and the court changed because it was out of step with the view Alabama voters have of what a judge is supposed to do,” See explains. “And, it cost a lot of money to get that message out. Yes, there was a dramatic swing, and it was my intention to start that.”
See has been through brutal campaigns. In 1994, there were rumors flying — that his opponent was a pedophile, that See was having an affair. See remembers being asked about the campaign rumors by his then-16-year-old daughter.
“I won and the court changed because it was out of step with the view Alabama voters have of what a judge is supposed to do.”
“She was waiting for me with a legal pad,” See explains, “and she went through a whole list of really awful things, that a 16-year-old should not have to deal with.”
Despite all this, See believes in judicial elections. He thinks voters should be able to remove judges who aren’t in step with their values. The swing he’s talking also happened in Texas. By 1999, the Texas Supreme Court had changed from all-Democrat to all-Republican.
And See says, if voters are unhappy, the court will swing again.
“I don’t anticipate you will see a big shake up unless and until, they look and say, ‘Whoa, they are not doing what we think they ought to be doing,’” See explains. “And if that happens, it will take time before the message comes home, but when it does there will another swing.”
See doesn’t think that’ll happen anytime soon. In his opinion, tort verdicts were sometimes frivolous and bad for the state. And, so the business community helped the public understand what was wrong with the courts.
“So that money is being spent, why?” See says, “because what the judges decides makes a difference that is significant in dollars to the parties who are funding those elections.”
Cobb was on the court with See. She’s a Democrat. In fact, she was last one elected to the Alabama Supreme Court.
As a Democrat, Cobb solicited money from lawyers, who are probably going to appear before her in court.
She would call, reminisce about law school, and then say, “Well, I sure do need your help and support.’ And then most would say, ‘Well, judge, I will do whatever I can to help you.’ And I would put on my finance director.”
“So, ‘help and support’ means cash,” I ask her.
“It was semantics, wasn’t it,” Cobb replies.
Just recently, the U.S. Supreme Court ruled that states can prohibit judges from personally asking for money. But in nine states, including Alabama, judges are allowed to openly solicit contributions.
Cobb was good at fundraising. Her election in 2006 was the second most expensive judicial election in U.S. history. She raised 2.6 millions dollars; her opponent outspent her with 5 million.
Now, Cobb openly opposes judicial elections. She says they turn judges into politicians and degrade the court.
“Elections in any state where a judge has to raise money, it has a negative impact on justice, it has a negative impact in people’s faith in the court system and those things are intertwined,” Cobb explains.
And she’s right, people don’t trust the courts. It’s a paradox. The great majority of Americans say they prefer elections to appointments. But in the same survey where Americans say they want elections, they admit they are distrustful of the process. Surveys show that 76 percent of Americans believe that campaign money influences judges’ decisions.
“Judging is different,” Cobb says. “But yet, when you are asking for money, people get the false impression that you are going to rule like they want you to rule.”
It’s not always a false impression.
Sometimes, judges do rule in favor of their contributors. In 2006, an investigation by the New York Times reported that judges on Ohio’s Supreme Court ruled for groups who had donated to their campaigns about 70 percent of the time.
In West Virginia, a coal executive, who had a case before the state supreme court donated 3 million dollars to a judge’s election campaign. That judge won election to the state supreme court, then voted in favor of coal magnate’s business in a civil case.
This caused a huge scandal and the case was appealed all the way to the Supreme Court. The Court ruled that judges must recuse themselves from cases when there is perceived bias.
“Judging is different,” Cobb says. “But yet, when you are asking for money, people get the false impression that you are going to rule like they want you to rule.”
That Supreme Court decision stops the most blatant corruption, but nevertheless, some elected judges clearly share the perspective of their contributors on tort cases. Between 2002 and 2011, the Alabama Supreme Court wrote opinions reversing 72 percent of plaintiffs’ jury verdicts.
“And then this is actually something you may be interested in,” Attorney Randall Caldwell says as he drops a massive black binder with thousands of pages of trial transcripts on his desk. It’s a case of his that was reversed by the Alabama Supreme Court. Caldwell says he usually throws all this stuff away, but this was a case he just can’t shake.
The case was simple. A woman named Wendy Baggett started going to a new OBGYN. Baggett had high blood pressure, and her new doctor prescribed a medicine called Benicar.
“Benicar has what we call a black box warning,” Caldwell explains, “that specifically states that you absolutely cannot take it while you are pregnant.
Months later, Baggett became pregnant. She went to regular check-ups and continued taking Benicar. At 8 months, an ultrasound showed she had no amniotic fluid. She was rushed to the hospital. Her child was born at 32 weeks and died three days later.
After a week of trial, the jury agreed that Baggett’s doctor should have taken her off the medication and awarded her 8 million dollars.
The judge knocked the jury verdict down the 5 million. And the case was appealed to the Alabama Supreme Court. Caldwell knew it would be.
“Well, they came back and reversed our case,” Caldwell says.
“I was devastated, I was upset. To the point I question why I am doing this for a living,” Caldwell explains. “All of a sudden I feel like I am being told, even when you think you have made a difference, we can take it all from you with the stroke of a pen, we can take it from you, and you are left with nothing, but an emptiness.
Baggett and her husband settled with the doctor’s malpractice insurance for an undisclosed amount.
Now, Caldwell’s pretty much stopped trying medical malpractice cases.
Does Caldwell believe the Alabama Supreme Court is corrupt? No. He just believes that businesses back judges, who share their opinions.
“They support those candidates, because they know they have certain ideals and visions of how they see these cases,” Caldwell says.
In any democratic process there are winners and losers, and thanks to judicial elections, it’s probably less expensive to run a business in Texas or Alabama.
But if you’ve been injured or maimed, or god-forbid affected by a wrongful death… you might wish you were somewhere else.
Production Notes:
This story was reported by Ashley Cleek and edited by Life of the Law’s Managing Editor, Michael May. Casey Miner produced the special segment on the US Supreme Court. Kaitlin Prest designed the sound and produced the story with post production assistance by Jonathan Hirsch. Simone Seiver and Kirsten Jusewicz-Haidle handled our post-production.
© Copyright 2015 Life of the Law. All rights reserved.
