How Big Business is Quietly Funding a Judicial Revolution in the Nation’s Court Systems

Excerpted from Nov./Dec. 2003 Mother Jones magazine
by Michael Scherer

…Since 1998, major corporations – Home Depot, Wal-Mart, and the insurance giant AIG, to name a few – have spent more than $100 million through front groups to remake courts that have long been a refuge for wronged consumers and employees.

By targeting incumbent judges, they have tilted state supreme courts to pro-business majorities and ousted aggressive attorneys general. At the same time, corporate lobbyists have blitzed state legislators with tort-reform proposals, overseeing the passage of new laws in 24 states over the past year alone.

Now, with a sympathetic ear in the White House, corporate America is taking its legal agenda to the federal bench with a behind-the-scenes campaign of high-powered lobbying and interest-group advertising. …

…Big money, however, cares a great deal about

who sits on the nation’s 13 federal circuit courts (as they are) the final venue for 99 percent of federal cases and most regulatory challenges. These courts, which operate in relative media obscurity…set precedent on issues affecting business such as media-ownership rules, sport-utility rollover lawsuits, or the rights of coal-mining companies to dump waste in thousands of miles of streambed in West Virginia.

… The strategy of using vast amounts of campaign cash to shift the legal landscape was developed a decade earlier by a talented young Republican direct-mail consultant from Texas – Karl Rove. Long before he took on the moniker of "Bush’s brain," Rove realized he could energize the legal and medical establishments by targeting the once-sleepy Texas Supreme Court elections.

… Soon the business community in other states, and nationally, began to invest in judicial battles… The U.S. Chamber of Commerce joined with the Business Roundtable to set up a complex network of front groups that anonymously filtered corporate money into often divisive local television ad campaigns.

By 2000, campaign spending on state judicial races had risen to $45.6 million, a 61 percent increase over the previous peak in 1998 and twice as much as 1994. …The Chamber claimed victory in 21 of 24 judicial elections it worked on in eight states, as well as 11 attorneys general races. "I was an exporter of judicial terrorism," explains (Kim) Ross of the Texas Medical Association …

Those familiar with Rove’s operation in Texas now see the same strategy at work in the White House’s selection of federal judges. … John Roberts, a Bush nominee who recently won confirmation to the District of Columbia Circuit Court, worked as an attorney to strike down new clean-air rules and filed a brief for the National Mining Association, arguing that federal courts could not stop mountaintop removal mining in West Virginia.