The Lasting Consequences of Soft-on-Crime Attack Ads in Judicial Races

Along with the makeup of Congress and statehouses, 22 states will vote on who belongs on the bench in their courts on Tuesday. Continuing a recent trend, some of those races have gotten ugly and expensive. At least $12.1 million, much of it from outside groups, has been spent on TV ads so far in this year’s judicial races, according to the advocacy group Justice at Stake.

Just look at the advertising action in one Montana judicial contest. The Republican State Leadership Committee, which in April announced a new focus on electing conservatives to state courts, has put some of its money into ads that claim an incumbent, Montana Supreme Court Justice Mike Wheat, “will protect convicted criminals, finding loopholes in the law, overturning convictions of violent criminals.” It’s the sort of soft-on-crime attack that have been common in the runup to Tuesday’s vote, according to Alicia Bannon, counsel for New York University’s Brennan Center for Justice. Montanans for Liberty & Justice, a group backed by trial lawyers and unions, is running an ad accusing Wheat’s challenger of being “in the pocket of out-of-state special interests,” another theme Bannon has seen repeated in this cycle’s judicial campaign ads.

Such attacks can change how justices campaign. As I reported this summer, as three Tennessee justices fought to keep their jobs in the face of conservative spending to defeat them, the incumbents frequently touted the number of executions they had presided over. Asked if he found that problematic, Tennessee Chief Justice Gary Wade admitted it wasn’t how he’d planned on spending his vacation. “Is it problematic?” he added. “Yes, it is. But under these circumstances, I think it’s important for the judiciary to do so.”

The Tennessee justices—with the help of plenty of outside spending on their behalf—survived that showdown, as may most of the judges on the ballot tomorrow. But that wouldn’t mean outside efforts had no effect. A study by two Emory Law School professors, released last month by the liberal American Constitution Society, found that the more TV ads that were aired in judicial elections, the less likely judges were to side with criminal defendants in appeals cases.

“If a judge is hearing a case, you want that judge to be deciding the case based on the law,” says Bannon, “not thinking in the back of their minds what the subject of the next attack ad is going to be.”

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