In October, the U.S. Supreme Court refused to address an appeal by convicted Mississippi attorney Paul Minor and former judges Walter "Wes" Teel and John Whitfield, who a U.S. District Court jury convicted of corruption in 2007. This decision likely brings to an end the defendants' push to get out of prison early, on the argument that prosecutors were never able to pinpoint an exchange of services between Minor's campaign donations and the judges' alleged favorable decisions on his cases.
Teel's wife, Myrna Teel, says prosecutors were never able to point to a particular trade for services, while Whitfield's attorney said the prosecution's indictment of the judges amounted to an attack upon freedom of speech protecting the right to contribute
Oddly, this is the same argument of one of Minor's mortal enemies, the U.S. Chamber of Commerce, a business-funded lobbying group that gives millions of (often foreign) dollars anonymously to business-friendly judicial candidates in a very specific attempt to generate favorable rulings for corporate defendants. Minor, a trial lawyer, frequently represented plaintiffs seeking damages against corporations for alleged wrong-doing.
To wit, trial attorneys and judges are going to prison for the same, or lesser, privileges afforded to the nation's big-business lobby. This legal double standard, tilting toward powerful corporations, led one former Mississippi judge to point out the increasingly obvious: The Chamber can give big money where generous lawyers must now fear to tread, leaving the scales of justice seriously tilted toward the corporate right.
What does this hypocrisy mean for Mississippi?
Convicted Attorney Dickie Scruggs has a face that appears downright jaunty. The former fighter pilot entered the legal business and took on opponents with the same fever he used in the cockpit. He had a habit of picking wealthy opponents with difficult-to-defend arguments and made a name for himself.
The south Mississippi attorney made millions taking on an industry that spent decades trying to insert lung-damaging asbestos into almost every facet of the construction industry. Seeing his legal prowess, then-Mississippi Attorney General Mike Moore brought people like Scruggs on as contracted attorneys on behalf of Mississippi to take on the behemoth tobacco industry.
Scruggs and other attorneys, including Minor, generated millions of dollars from settlements they won over the tobacco and asbestos industries, not to mention the considerable success they earned in many independent trial cases.
Both Scruggs and Minor, flush with new financial resources form their solid conquests, donated lavishly to people in judicial races, most often to candidates with a Democratic bent, or those perceived by them to be either more friendly to plaintiff cases—or at least not as biased in favor of corporations on the bad side of a lawsuit.
U.S. Chamber advocates complained for years that plaintiff-friendly lawyers like Scruggs and Minor were donating too heavily to the judicial system, even as trial lawyer associations argued that attorney campaign donations didn't appear to be generating a pro-plaintiff bent at the Mississippi Supreme Court level. The argument has become moot since the celebrity takedown of both Scruggs and Minor during the last seven years, however, and Chamber advocates have to search hard to find proof of trial lawyer influence on the Supreme Court.
The Chamber's influence, on the other hand, has been growing ever since it embarked on its own vocal push to influence judicial races. A 2001 Wall Street Journal article revealed that U.S. Chamber President and CEO Thomas Donohue created several special accounts to absorb money for political fights on behalf of companies or groups of companies seeking an edge in court cases. The accounts allow the Chamber to keep its donor list nice and anonymous.
In fact, the Chamber battled courts in Mississippi during the 2000 election to keep its donor list far out of public view.
In October 2000, the Chamber flooded corporate-friendly candidates with campaign cash, according to former Supreme Court Judge Oliver Diaz, who said the organization was funding attack ads claiming him to be the friend of drug dealers and other unseemly types. Diaz, who had not expected $1 million worth of ads in the final weeks of the elections from his competition, had to scramble to keep up.
"That was the first time the Chamber came into Mississippi, and then two or three years later they did the same thing to (Justice) Chuck McRae, forwarding lots of money against him, and they've done it in every (Mississippi) Supreme Court election since then, and then in my most recent election in 2008," said Diaz, who lost the 2008 race.
"The problem with that is it looks like these outside interests are buying judges in the state of Mississippi, and all over the country actually. It isn't limited to the state of Mississippi."
Chamber of Influence
So far, the higher court system appears to favor the Chamber's right to fund judicial races—and keep it quiet.
Four Mississippi judicial candidates the Chamber had determined to be pro-plaintiff—Oliver Diaz, Billy Joe Landrum, Chuck Easley and Frank Vollor—filed an injunction in 2002 to keep Chamber ads off television stations, citing state regulation of out-of-state money.
A local judge granted the injunction, but then the Chamber immediately appealed the decision up to the U.S. Supreme Court, where ultra-conservative Justice Antonin Scalia reversed the decision and allowed the ads back on the air, making Mississippi a major destination for anonymous pro-corporate campaign cash.
The Wall Street Journal marveled in 2001 at the amount of money that rolled in from anonymous Chamber donors: "... Mr. Donohue raised more than $5 million for judicial campaign ads in Michigan, Mississippi, Ohio, Indiana and Alabama. Many of the targeted judges had rendered verdicts against one or more of the companies contributing to the effort.".
Mississippi Supreme Court decisions suggest those Chamber donations are making a serious difference in promoting their side of the argument in courts.
Attorney Alex Alston told the Jackson Free Press that the Mississippi Supreme Court reversed 88 percent of jury verdicts favoring plaintiffs in the four years leading up to 2008, after years of Chamber influence in Mississippi election cycles. Alston added that the Court reversed absolutely no jury verdicts favoring corporate defendants.
Former Chief Justice Jim Smith denied that Alston's numbers were accurate in 2008, and told the Jackson Free Press at the Neshoba County Fair that he had numbers on his person saying otherwise. He pointed to a file supposedly containing the numbers, but refused to show them to this reporter.
The Mississippi College Law Review found similar results to Alston's in 2009, reporting that the Mississippi Supreme Court reversed twice as many civil plaintiff verdicts as defense verdicts from 2004 to 2008. Mississippi College Law Review used trial courts as a kind of control group, and found that judges and juries in trial courts were more balanced, with 310 verdicts for the plaintiff and 281 for the defense.
Diaz said corporate-affiliated judges can make incredible changes to state laws without adding or removing a single line from the actual law.
"You can change the law without even changing the actual wording of the actual laws in the books. You change the law by changing the folks who interpret those laws. And that's dangerous when we get to that point," Diaz said. "When you're dealing with judges and judicial elections, the law is supposed to be the law. It's supposed to be black and white. It is what it is. But when you get to the point when changing the judges can change the law, you're getting rule by judges instead of rule by law. You're getting judges that are setting themselves up as rulers."
Their power, Diaz says, is more ubiquitous than many people realize because judges arbitrate disputes among everyday citizens, from a multi-million-dollar asbestos suit to a $50,000 personal malpractice claim against a hospital. "t really threatens our entire system of justice," Diaz said.
This election cycle is showing few signs that the U.S. Chamber of Commerce is backing off on attempts to buy corporation-friendly public officials. In fact, it seems to be raising the funds it later donates in countries where many American jobs have gone in recent years.
Think Progress, a publication connected to progressive public policy research and advocacy organization Center for American Progress, published an exposé in October revealing the Chamber's foreign fundraising operation.
"The Chamber raises money from foreign-owned businesses for its 501(c)(6) entity, the same account that finances its unprecedented $75 million-dollar partisan attack ad campaign," Think Progress stated, while citing a list of 83 foreign companies that donate to the Chamber's 501(c)(6). Many of the companies come from India, a country now infamous as a destination for outsourced U.S. jobs.
Think Progress notes that the information it cites comes from annual dues, and that the Chamber "likely has more (unknown) foreign corporations as dues-paying members—but refuses to divulge any of the funders for their ad campaign."
Mississippi author and Democratic operative Jere Nash says the Chamber has a shocking influence upon the Mississippi Supreme Court through its election system.
"There are people who are very angry that an organization like the Chamber can come into Mississippi and dump a million dollars into state Supreme Court races and elect two of their judges," Nash said.
"[The Chamber] elected two out of four, and the trial lawyers elected their two out of four (in 2001), but the Chamber clearly changed the balance and created two victories. If the Chamber had not spent that money that year, they would not have won those races. That was the same way Jess Dickenson raced against Chuck McRae, and when outside organizations came in to help Bubba Pierce (unseat) Oliver Diaz. Pierce would not have been elected had it not been for that outside money."
Pierce was not available for comment.
No More Elected Judges?
Journalist Curtis Wilkie recently published a book, "The Fall of the House of Zeus" (Crown Publishers, 2010, $25.99), cataloging the rise and fall of Scruggs. Wilkie reports many of the details surrounding Scruggs pleading guilty to buying favorable rulings from Circuit Court Judge Henry Lackey in 2008.
But Wilkie also briefly touches on the amount of legal trouble for attorney Paul Minor who guaranteed campaign loans for judges Teel and Whitfield.
Wilkie wrote that campaign donations can easily get individual donors in trouble, and recommended appointing judges: "I have concerns about the whole process of elected judges. When you use that system you automatically enter the corrupting influence of money and the politics that elects these people," Wilkie said.
Attorney Philip Thomas, who blogs his arguments on the Mississippi Litigation Review and Commentary website, also advocates for ditching the elective system and instead appointing judges.
"The evidence is that when judges are appointed you have a better judiciary, and number two, the position is less political than when it is elected. I'm not going to say it's not political, but it is less political," Thomas told the Jackson Free Press. Thomas referenced the federal system for appointing judges; one that he feels is inherently more successful.
"The reason I'm sold on that system is that I almost always vote Democratic, but if I look at the appointments that President Bush made—who I thought was a horrible president—his appointments to the bench in Mississippi were really good. And the appointments that Gov. Haley Barbour makes when he has appointments to make are usually pretty solid."
"It's not a situation where I feel like I should worry about it as a Democrat in Mississippi, even though Republicans are going to get to make most of these appointments," Thomas added. "They still appoint judges who I think are
Nash, though, said he is not ready to concede defeat on electing judges, despite the obvious Chamber influence, particularly because of the Chamber's proximity to the Republican Party and Mississippi's Republican governors. "For those who want to appoint judges, they've got to look themselves in the face and ask themselves: ‘Do I really want (Gov.) Haley Barbour or (gubernatorial candidate) Phil Bryant appointing every judge in Mississippi?'
Wilkie said an appointment system would only work effectively with input from a legislative body. "The best way is to have some sort of check and balance on an appointment or a nomination, much as we have in Washington. When the president nominates someone to be a judge, the Senate has the power of advice and consent. There have been several nominations that have been locked in fierce battles, where the president's nomination could not go though and they had to withdraw it," Wilkie conceded.
"You have politics involved there, but at least it's not an election, and you have a chance of blocking someone improper."
Wilkie points out that the federal system also calls upon bar associations for input, with the American Bar Association frequently hit up by the president's office for recommendations. "They can give a staged approval or flatly say that this person is not acceptable," Wilkie said. "But there's bound to be a better way to come up with a judge than electing one."
Thomas said he had "seen enough" of the appointment process in other situations to alleviate his fears of a Chamber representative making appointments from the governor's office.
"If it is an appointment, it is subject to abuse, but I don't know of any instance when somebody made a strong case that the system has been abused," Thomas said.
"When the president makes an appointment, it has to be approved by the Senate. And if you want to appoint judges in Mississippi, you should probably have something where the Legislature or whatever has to approve it. There should be some sort of system of checks and balances to keep a person honest."
Nash pointed out, however, that "right now, the Senate does anything the governor wants them to do," which neutralizes the Senate's checks-and-balances ability. Politicos and many Democratic House members say the Senate has essentially proven itself to be a second arm of the governor's office for most of Barbour's two-year term, and that most of any opposition to the governor comes from the Democratically-controlled House.
In fact, although the Senate has sided against the governor occasionally on property-rights issues or on a tax increase, the Senate has never managed to overrule the governor's veto of the most popular bills.
The Mississippi Way
A potential appointment process could uncover another issue unique to Mississippi—the problem of fairly accounting for race when appointing judges. Barbour named his first black judge to a judicial post in October 2009, after serving six years as governor.
Earlier that same year, the Magnolia Bar claimed Barbour had pointedly refused to name black lawyers to judicial positions since his 2003 election. "He has not appointed any African Americans for judge in any of his 20 appointments," said then-Magnolia Bar Association President Malcolm Harrison in 2009. "It's sad that he cannot believe an African American could do the job."
The Magnolia Bar was particularly incensed that year at Barbour's appointment of Oxford attorney James Maxwell to a judgeship on the Mississippi Court of Appeals to replace Judge David Chandler, who was elected in 2008 to the Mississippi Supreme Court.
Harrison argued at the time that the governor was putting political affiliations above racial equality. Barbour is the former chairman of the Republican National Committee and remains a huge presence in the GOP, including serving as chairman of the Republican Governors Association, which exists to help oust Democratic governors across the United States.
Maxwell's wife, Mindy Maxwell, directs the Oxford office of another GOP giant, Mississippi Sen. Thad Cochran, who chaired the Senate Appropriations Committee before Democrats won the Senate in 2006.
The Mississippi Bar Association revealed in 2009 that James Maxwell had only held a bar license since 2001, and Harrison said then that he believed a state containing the highest national percentage of African Americans likely contained capable black lawyers with experience extending beyond seven years.
"African Americans are more than qualified to serve on the Mississippi Court of Appeals, as well as any other judicial appointment. In fact, Mississippi Court of Appeals Chief Judge Leslie D. King is an African American—at least he was last time I checked. There are qualified people who are available, but the governor has seen fit not to even consider an African American in these positions," Harrison said.
Barbour earlier burned black attorneys in 2008 by replacing black Leflore County Court Judge Solomon Osborne with Seventh Chancery Court District of Mississippi court administrator and senior staff attorney Kevin A. Adams, who is white. The Magnolia Bar remained furious that the governor took no account of the fact that Leflore County is roughly 70 percent black.
"The bottom line is that there are qualified blacks to serve as judge at any level in this state, but Barbour has not chosen any because he does not believe that diversity is an issue," Harrison said in 2009.
The governor's Judicial Appointments Advisory Committee scrutinizes the qualifications of potential judicial appointees. JAAC head Ed Brunini, also Barbour's attorney, told the JFP in 2009 that the problem lay with the lack of black applicants to judicial positions. "There are no significant numbers of lawyers practicing in that area," Brunini said of Judge Chandler's vacated district, "and the good ones don't want to give up their practice to be a judge because they're making considerable money in the private sector."
Jackson attorney and U.S. District Court judicial nominee Carlton Reeves argued in 2009 that African Americans were often applying to Barbour's Committee for Judicial Appointments; indeed, Reeves himself had submitted to Brunini's committee letters of recommendation on behalf of hopeful attorneys.
Mississippi NAACP President Derrick Johnson disagreed with Brunini's argument: "We're in a state where African Americans make up 37 percent of the population," Johnson said last year.
"We have an abundance of qualified individuals who can serve this state as court judges, as has been proven by the more than 28 judges that effectively serve on the bench, and for this governor to use a mindset that is remnant of the 1950s and 1960s is not only insensitive to the African American population, it is a continued embarrassment."
Harrison has since silenced his criticism. He was, after all, Barbour's first black judicial appointee in October 2009, replacing Hinds County Circuit Court Judge Bobby DeLaughter, who pled guilty to misleading federal authorities in a corruption investigation stemming from Scruggs' own guilty plea.
But Johnson said Barbour's painful track record when placing black judges leaves much to say about a system of appointing judges in the state. "The governor has still only made two appointments of black judges last time I checked. If there was ever a good case for keeping the election system for seating judges, this would probably be a good one," Johnson said. "Perhaps the people need to be the ones to make the choice directly."
Fixing the Flaws
Diaz said that even though he advocates for the election system, the system needs serious transparency.
"Citizens should ultimately decide that issue, but we should have complete and total clarity as to who is contributing to these campaigns. We should know exactly who is giving money to the groups who advertise in all judicial elections. It would be very simple to make that law. If anybody is running any ad that mentions a judicial candidate, we should be able to disclose all sources of money funding that campaign. And not only the large groups, but who contributes to that group."
In 2004, four years after the Chamber first skirted state campaign law and dumped $1 million of "soft money" into Supreme Court elections, then-Secretary of State Eric Clark and Attorney General Jim Hood submitted a new campaign-finance bill requiring the disclosure of unreported cash into campaigns. The resulting bill also required complete reporting of campaign loans and electronic filing of campaign contributions for easier public access to the information.
The bill survived both the House and the Senate that year, but Barbour—who is largely described by his critics as an arm of the Chamber—vetoed the bill after the Legislature adjourned that session.
Barbour said in his veto message that he did not approve of the way the bill would restrict corporate donations to political action committees like the ones created by the Chamber and its affiliates.
"[T]he conference report changed the effect of the bill from one of disclosure to limitation of political activity. Current practice limits corporate donations to political candidates and political parties. The new Section 9 (of the bill) adds political action committees to this list. Without any public notice, this would change the original intent of the corporate limit law and would contradict the purpose set forth by the bill's authors," Barbour wrote.
"For years, Mississippi businesses have made contributions to legal political action committees across the political spectrum. Under this last-minute change, businesses would be limited in what they could give to political action committees as diverse as the Sierra Club or a right-to-life organization. We should encourage open political activity, not discourage it."
Barbour did not use the U.S. Chamber as an example in his veto message.
Nash said that the bill would have conflicted with the U.S. Supreme Court's decision giving corporations the same campaign rights as voters, in any case.
"Haley vetoed it, but the law wouldn't have made a difference because it was an attempt to circumvent the U.S. Supreme Court," Nash said. "In Mississippi, there is full disclosure for everything that's done in Mississippi. It's just that if a national organization wants to advertise in Mississippi under one of the legal vehicles that are available to them and they choose to avoid using the words "vote" or "elect," and you operate under a 527 organization the court has said you don't have to disclose your donors. There's nothing Mississippi can do to override a decision of the U.S. Supreme Court."
Diaz said the U.S. Supreme Court's decision does not affect disclosure laws, and that legislators could still pass laws that require disclosure.
"The laws that were struck down were saying that these groups couldn't contribute to elections, but as long as there are elections, there should be full disclosure and the Legislature could require full disclosure of all these elections, and that would still not violate the interpretation of (freedom of speech) laws," he said.
The former justice remains convinced that a cleaner election system is the best method to get a good judge. "The elective system isn't inherently bad in and of itself. It just has to be conducted in the right way," Diaz said. "The way we conduct it now, it is flawed, where these groups from outside the state, outside the country even are allowed to come in and basically buy a seat on the Mississippi Supreme Court if they want to."
Nash, however, argues that full disclosure may not make the biggest difference in a judicial race.
"I have yet to see, in virtually every election I've done, where the contributors matter to voters. It's the same as asking if it makes a difference if a candidate's spouse or best friend or campaign manager has a criminal record, or if your contributors are a bunch of New York investment houses, or whatever," Nash said.
"None of that, in my experience, has ever mattered to the average voter. The average voter tends to focus their opinion almost exclusively on the candidate. Is the candidate up to the job, can they be trusted, are they telling me the truth? Outside of that I don't really think they care who the candidate's friends are."
"This is a terrible system, but it's probably the best we've got," Nash added.
‘Where the Glitch Is'
‘The Ability to Discern'
Meet the Judicial Candidates
Read more interviews with local judicial candidates at http://www.jfp.ms/politics. Please add your comments as well.