The Shiny New Target for Political Spending

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Mary Harris: While you and I were paying attention to this month’s midterm elections to puzzle out who was going to gain control of the U.S. House or the Senate. Eric Ortiz from over at NBC News. He was focused on something else. Judges.

Speaker 2: You know, the judiciary gets the shaft in a lot of ways when it comes to coverage because, you know, and rightly so, everyone cares about, you know, if it’s a presidential election year or if it’s a governor of a state or even a mayoral. Races can be hot ticket races. But these sort of races aren’t normally at the forefront of voters minds.

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Mary Harris: Eric was paying attention to judges because in a lot of places they run for election, too. And in the last few years, their once sleepy races have really woken up. All across the country. Erik reported on insurgent campaigns to unseat judges who are perceived as too liberal, like in Kentucky, where a Republican state legislator named Joe Fisher took aim at the registered independent who was set to become one of the state’s most senior Supreme Court justices. Fisher so badly wanted voters to know about his right wing point of view that he filed a lawsuit over it.

Speaker 2: He was not ashamed to talk about his conservative ideology. He branded himself as the conservative Republican in the race. That’s something that does not happen really ever, even in a place like Kentucky, where, you know, again, it’s a deeply conservative state.

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Mary Harris: Is that just because it’s kind of gauche?

Speaker 2: Yeah, I mean, even in a really partisan state, Kentucky has nonpartisan elections. And, you know, judges aren’t supposed to be talking about which party they support or, you know, who they’re getting campaign funding from. That’s just yeah, that’s just not something that happens.

Mary Harris: National money poured into Kentucky and it funded ads that sounded like this.

Speaker 3: Joe Biden and Nancy Pelosi’s socialist agenda threatens Kentucky families and our way of life to protect our freedoms.

Mary Harris: Keep in mind, well, some states do have partisan elections where judges run as Republicans or Democrats. Kentucky does not. Fisher essentially ran as a Republican anyway. He even used an elephant in his campaign ads.

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Speaker 3: We need strong constitutional conservatives in the courtroom, like Joe Fisher.

Speaker 2: Has, as Joe Fisher tried to make the argument on social media. People were posting about, oh, how can you, you know, how can we trust you if you’re elected? And he tried to make the point that just because you hold a certain moral belief on an issue, it shouldn’t discount your ability to, you know, put aside your personal opinions about political issues and you decide each individual case based on the law as it’s written. That was, you know, what he was telling people. And that just doesn’t jive with a lot of voters. And I think that voters maybe some voters, anyway, saw through that.

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Mary Harris: Yeah. I mean, I was going to ask you about that, because in the end, in the end, Joseph Fisher lost his race, which means his campaign didn’t work. So I kind of wonder why pay attention to races like this in the first place?

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Speaker 2: Yeah, I mean, it’s still the money and the influence that’s coming into these campaigns. You know, back in the 2020 election cycle, about $97 million was spent on state Supreme Court elections. You know, groups that track spending say it’s going to be a lot more this time.

Mary Harris: It’s interesting. It sounds like you’re basically saying like this guy may have lost, but we’re going to keep having this fight again and again.

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Speaker 2: Right. This is only the first of many, I’m sure. And it’s so sort of opening up the spigot of outside money and outside influence into these races. Again, a lot of them are nonpartisan.

Mary Harris: So today on the show, why state Supreme Court races are getting more political than ever. I’m Mary Harris. You’re listening to what next? Stick around. The partisan fight to control state supreme courts. It didn’t start and end in Kentucky. And Erik Ortiz says it wasn’t just about conservative candidates either.

Speaker 2: I mean, it wasn’t just Republicans. It was Democrats as well pushing their favored candidates. So this all became really political in some of these races. In some states, it just you know, it turned away more political than anyone anticipated, I think.

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Mary Harris: I asked Erick to take me through a few of these races one by one. He started with what happened in Montana. That is a state where an incumbent justice, Ingrid Gustafson, faced a challenge from a candidate named James Brown. Like in Kentucky, races here are supposed to be nonpartisan, but that didn’t stop James Brown from raising a bunch of money from the Republican State Leadership Committee. In the end, this race was the most expensive state Supreme Court race in Montana’s history.

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Speaker 2: So outside groups raised $3 million on that race. And, you know, $3 million might sound like a drop in the bucket in other, you know, huge campaigns. But like for Montana and for a judicial race, that’s that’s big money. And it was a big deal because, you know, the Republicans control all the levers of government in Montana. And they’ve long seen the state Supreme Court as sort of the last frontier that they want to control. And the state doesn’t even have partisan of elections. But, you know, conservatives have also accused the court of skewing liberal.

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Mary Harris: And taking on an incumbent judge is a big deal, right?

Speaker 2: Yeah, absolutely. And the thing is, incumbents generally sailed to victory pretty easily. If you look at all the races, it’s, you know, the majority of races over the over the years for state Supreme Court across the country, the incumbents usually always win. And so it’s if you’re going to go up against them, you better have money and you better have backing.

Mary Harris: Hmm. So what happened with Gustafson? Did she have to kind of get her ducks in a row, like her support and and basically act like a politician this election season?

Speaker 2: Her campaign was sort of built on sort of being the anti James Brown.

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Mary Harris: James Brown was her the guy running against her.

Speaker 2: Her opponent. Right, right, right. She she sort of went the opposite of his route. Right. So he was very outspoken about being conservative and he was not ashamed to, you know, use his backing from Governor Greg Gianforte, who, you know, he would say on the campaign trail that the governor was the one that encouraged him to run, that called him up and said, you know, you need to be in this race. You need to be sort of the person that stops judges from legislating from the bench, which has been a common complaint among conservatives. So.

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Speaker 2: So, you know, Gustafsson was more the you know, she didn’t go there and she sort of used her time on the Supreme Court and just sort of saying, you know, she upholds the integrity and she’s going to you know, she she rules based on what’s the law and how it’s written, sort of your standard answer in the end.

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Speaker 2: Brown ended up losing by 40,000 votes to Gustafsson, but when he conceded, he blamed money coming from the outside for why He basically said that, you know, we fell short after this hard fought campaign, but we were outspent by special interest groups and we saw millions of dollars in liberal money flooding into the state in the final weeks.

Mary Harris: Is that true?

Speaker 2: Yes. I mean, there was a lot of outside money on both ends and from different PACs because they saw how important this race was and candidates recognize how unprecedented it was.

Mary Harris: There are other states, though, where Republican justices and Republican fundraisers can claim real wins. Take Ohio here. The state Supreme Court already had a Republican majority, but newly elected justices could still flip the balance of power, and that could have real implications in the courts. Upcoming cases involving redistricting and the state’s six week abortion ban.

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Speaker 2: The Ohio Supreme Court has been under Republican control since 1986, and this year was interesting because it was the first year that party affiliation was actually listed on the ballot for Supreme Court races. And Republicans swept all three seats, and that includes Pat DeWine. He’s an incumbent judge on the Supreme Court, but he’s also the son of Republican Governor Mike DeWine. And the current chief justice is a Republican, but she’s retiring and she was a swing vote on some major issues. And that included striking down the pro GOP congressional map. She was very vocal about how Republicans sort of abused their legislative power to draw up these congressional maps. And even some Republicans called for impeaching her. So once she leaves, that means that that with Mike DeWine getting to appoint another person to the court, yeah, he’s probably going to appoint someone who is way more conservative than her because of the pressure that the court’s been under.

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Mary Harris: After the break, one more state that had a partisan flip. North Carolina.

Mary Harris: What is the model for what conservatives especially? Have been hoping to do with these state Supreme Court elections, because this isn’t the first year when. Folks have focused on them and there’s been an outcome that’s been meaningful, like I think back to 2019 and I think of Wisconsin, where there was this election for a guy named Brian Hagedorn, and he’s a conservative. I think there was a lot of concern in that state that having a conservative Supreme Court. Would be a problem would be because the state is so gerrymandered, the legislative level that the Supreme Court was a check on that. So is that the vision that’s in conservatives heads when they think about how these seats are valuable to them?

Speaker 2: Yes, And I think you can look at North Carolina as sort of your example of Wisconsin for this election. I mean, Republicans again flipped the majority from Democrats on the bench, you know, held a slight four three majority, but now it’s five two Republican. And that’s a big deal. That hasn’t happened since 2016. And Republicans in North Carolina are guaranteed to keep that majority until at least 2028. And North Carolina Republicans control all the different levels of government except for governor. You know, when you look at the money that came into that state and what Republicans are hoping to do, they saw how under a Democratic majority.

Speaker 2: Things like congressional redistricting, redistricting of maps, gerrymandering, where were big issues? Next year, the court is expected to hear a case on the restoration of voting rights for felons. And if you have a Republican majority as opposed to a Democratic majority on the court, you know, things can change.

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Mary Harris: Yeah, I mean, I was looking at some of the decisions that North Carolina’s Supreme Court has weighed in on just in the last little bit to think about how this might change. Like, one of the things they did just this month was issue a decision ordering the state to transfer funds to its public education system because they said the state legislature was inadequately funding public schools. That’s a pretty progressive decision, and I’m not sure it’s the same kind of decision that a52 Republican court would make.

Speaker 2: You’re right. And that’s why everyone’s scared about what’s going to happen. You know, if you are a liberal leaning or a Democrat about what the decisions are going to be made, because what one court decides one year, if the makeup changes, it’s going to be completely different than the next. And, you know, you’re going to have a whole new fight on your hands.

Mary Harris: Yeah. The other thing it’s interesting you raised this, that when this new majority is in place in North Carolina, they’re going to hear challenges to abortion restrictions and also prohibitions on voting by people with felony convictions. And I think those are both issues where voters have said. That they want fewer restrictions on abortion and they want felons to be able to vote. And they’ve said that in states that are pretty conservative, like Florida’s voters voted to give felons voting rights and that was later tinkered with. But that’s that’s how the voters came down. And we, of course, saw the results on abortion. And it just made me wonder whether the voters in North Carolina really understood the issues at play when they were voting for these Supreme Court. Justices.

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Speaker 2: That’s a great question. I mean, you know, you have exit polls for for a lot of different races. But, you know, in terms of why people vote for certain justices, it’s it’s really unclear. And, you know, a lot of times voters, by the time they get to the ballot where the judicial elections are, because it’s all the way down, you know, these are down ballot races. They probably are fatigued. They probably haven’t really, you know, really studied these candidates the same as they would normally. And so, you know, a lot of times you just sort of check off the same names, you know.

Speaker 2: Here in New York, there were races for Supreme Court. And I recall seeing that they were uncontested. And I could not tell you who these justices were. And I pay attention to, you know, political races. But, you know, I’m probably representative of a lot of voters who don’t pay attention. And it’s just unclear, you know, why maybe they why certain candidates, you know, won over others.

Mary Harris: Here’s a maybe dumb question. Why are Americans electing judges in the first place? Because I look at what we’ve just talked about, these hotly contested races for state Supreme Court. And it seems to me like it’s only natural for these races to be getting more aggressive. Like this is the obvious end point of electing judges.

Speaker 2: But they’re not supposed to get more aggressive like this. I think a lot of political scientists and academics will say, I mean, judges are sort of governed by their own code of moral ethics and code of conduct. Each state has their own, you know, judicial conduct commission. And, you know, if a judge from the bench is seen to be biased or partial, they are going to get reprimanded by their commission and they can even be removed from the bench. And that’s, you know, sort of the worst sanction that that you’re going to get. And that does happen from time to time. And I think that when that happens, it’s it’s you know, it doesn’t look good for them.

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Speaker 2: And, you know, you talk about why do we even elect these judges? I think that when you think about and this might sound corny, but when you think about how this country is founded on democracy and, you know, this is another branch of power that, you know, why shouldn’t voters have have a say in who is in charge of enforcing the laws and the constitution of each state? I mean, they are a check and they are needed. And I think that if you just have governors appointing appointing them, then, you know, it’s going to get political quickly. So at least this is kind of one way for voters to have a say.

Mary Harris: Well, it’s funny, like the when you talk about that, all I can think is like it’s gets political no matter which way you do it. Like, is there any good faith effort to come up with a new system for getting judges into office?

Speaker 2: I think it’s it’s incumbent on the judges, the judicial candidates, to sort of police themselves in that respect where, you know, you have a Joe Fisher who was, you know, unabashedly conservative and Republican and putting elephants on his campaign signs. But you had his opponent who wasn’t doing that, and she ultimately won. So, you know, maybe this will show some people that, you know, you try to politicize these judicial races and it’s going to backfire on you.

Mary Harris: You’re an optimist.

Speaker 2: I guess I expect a lot. But, you know, can I say maybe I shouldn’t be Erik Ortiz.

Mary Harris: I’m super grateful for your time. Thanks for coming on the show.

Speaker 2: Of course. Thank you so much, Mary.

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Mary Harris: Eric Ortiz is a staff writer at NBC News. And that’s the show. If you’re a fan of what we’re doing here. What next? The best way to show us some love is to go on over to Slate.com, slash what next? Plus and sign up. That is our membership program. You get all kinds of great benefits for joining stuff like ad free podcasts, including this one. Go check it out. What next is produced by Elena Schwartz, Carmel Delshad, and Madeline Ducharme. We are getting a ton of support from Anna Phillips, Jared Downing, Victoria, Dominguez, and Colton Salaz. We are led by Alicia montgomery and Joanne Levine. And I’m Mary Harris. Tomorrow, what next? TBD is going to be in this field. Lizzie O’Leary is going to delve into climate reparations, asking whether wealthier nations should pay for damage caused by climate change. I will be back in this feed on Monday. I’ll catch you then.