Record campaign spending in Pennsylvania high court race

(CNN) - He's a self-described "regular guy from a very humble background," talking up a crowd of Democrats in a Somerset County, Pa., ward meeting, just days before Tuesday's hotly contested election race. Seamus McCaffery wants their votes, and he has the political and people skills to get it done, along with healthy infusion of campaign cash.

He tells them he is an Irish immigrant, and former Philadelphia beat cop. The bald, burly candidate has a ready smile and he swaps stories with the crowd.

The post McCaffery seeks is on the Pennsylvania Supreme Court, the nation's oldest appellate body. The idea of judges running for elected office may seem like a strange and unseemly concept, but it is the law in 21 states that have some sort of contested system for top judges. Thirty states - along with the federal system - appoint their judges, often with a merit selection system in which the governor gets the final say.

McCaffery, a state appellate judge and a Democrat, likes the idea of hitting the campaign trail, visiting all of Pennsylvania's 67 counties, and sparing no amount of energy or money to secure a seat on the state high court.

"I'm electable, not appointable," he told CNN. "If I'm elected, I am responsible to the citizens, not the governor, not the folks who like to talk about merit selection."

He calls that system "elitist."

With his money, McCaffery has produced statewide television ads and a multimedia Web site. Other candidates have done the same thing.

Judicial elections were long the sleepy backwater of state politics. So why all the growing attention? Political experts say with uncertainty over how much money special interests can donate to politicians in various states, judicial candidates are getting more attention. The focus on the courts also reflects the overall intensity and partisanship for state and federal elections.

And the ideological and financial stakes are enormous - from business groups dueling with trial lawyers over multibillion-dollar punitive damage awards, to ideological groups sparring over abortion and gay marriage. With civil and criminal court dockets nationwide growing at a record pace, judges increasingly are taking on contentious social and financial issues.

Pennsylvania is setting the pace for the growing partisanship in state election races. Nearly $7 million dollars - a record for judicial elections - has been spent so far for the two open seats. McCaffery is one of four candidates running - two Republicans and two Democrats.

McCaffery has raised about $2 million this year, more than his competitors, according to state campaign finance reports filed Oct. 26.

The other Democratic candidate is state Judge Debra Todd. On the Republican side are former judge Michael Krancer and current Judge Maureen Lally-Green.

Five states in 2006 - Alabama, Georgia, Kentucky, Oregon and Washington - set records for their judicial elections. Legal reform experts say the real test for spending will be next year, when 19 states hold Supreme Court
elections.

But just because judges are running does not mean the race and its political rhetoric has remained sedate. Advocacy groups, trial lawyers, and business groups have been eagerly funding the candidates, and running their own attack ads.

Pennsylvania officials asked a state court last week to stop an outside group from running a TV commercial they say illegally promotes a court candidate.

And the head of the state's GOP recently called Democratic candidate Judge Debra Todd "the drug dealer's choice for Supreme Court" for her rulings that dismissed charges against a criminal suspect.

Critics of the whole judicial election system say things have gotten out of control.

"It creates the perception in the public eye that justice is for sale, that seats on a court can be bought and sold," said Rebecca Kourlis, founder of the Institute for the Advancement of the American Legal System, and a former Colorado Supreme Court justice. "Judges are human and when judges sit on the bench and have before them parties that have donated to their campaign or whom they want to donate to the next campaign, it's very difficult to set that aside completely and to make a decision without regard to those kinds of pressures."

Kourlis said state judicial elections have now become hotly contested affairs, with campaign consultants, public relations staffs, and a heavy campaign and travel schedule.

One Pennsylvania judicial candidate, who did not wish to be identified by name, admitted the system is growing out of control, and worried about not being as "telegenic," or having the name recognition or financial resources of some opponents.

"But what am I going to do? If you want to be a judge in this state, you have to hit the (campaign) trail," the candidate said.

A study released Oct. 16 by the non-partisan Annenberg Public Policy Center found people in states with no partisan elections had a higher level of trust and confidence in the judiciary. But two-thirds of those surveyed also preferred electing judges directly rather than having them appointed.

A Supreme Court ruling in 2002 loosened some free speech restrictions on what judges could and could not say on the campaign.

Kourlis said that has opened a can of political worms for judges. "So now they're in a posture where they have to answer those questions or they're viewed as trying to evade the voters in some sense," she told CNN. "It's created a circumstance where the notion of impartiality, having judges who truly have not pre-judged a case when it comes before them, is suspect.

In a state high court race in Alabama last year, then-chief justice Drayton Nabors said in a television ad, "I'm pro-life. Abortion on demand is a tragedy, and the liberal judicial decisions that support it are wrong." Nabors lost his seat in the election, for which more than $7 million was raised.

The non-partisan National Institute on Money in State Politics found business groups have overtaken lawyers as the chief funders of judicial campaigns. In 10 state races in 2006, 44 percent of the campaign money donated came from private businesses, about twice as much as lawyer groups. One reason is that the Chamber of Commerce and other lobbying groups have pushed tort
reform in a number of statewide races. Labor unions have been another large source of judicial campaign cash in the Pennsylvania races.

For his part, McCaffery says he is careful about what he says on the campaign trail, where he has visited all 67 counties in the state. But he is a popular draw, falling back on his law enforcement roots and love of motorcycles to attract a diverse group of supporters.

"People see you ride up in a Harley Davidson and you're riding with some charitable group, and all of a sudden they walk up and they go, 'oh you're a judge' and I go, 'well, you know people elect us,'" said McCaffery. "And that's
the beauty of having electoral process where we need to be responsive to the community. And I think it's important that judges should be out there. It's just as important as other elected officials."

The 57-year-old is currently an appeals court judge, based in Philadelphia where he grew up. He said the politician in him stops when he enters the courthouse.

"We take an oath and the oath is to uphold and defend the Constitution," he said "And at the end of the day we're not going to be compromised by the public, we're not going to be intimidated by the public. I really believe that the public needs to understand that I work for them. They elect me, they give me their vote. I think it's so important to let people know that you appreciate
their trust in you."

But reform advocates say the problem is not so much the candidates themselves competing in a popularity contest, but the system that needs to be addressed.

"I think that the American public needs to understand how important this issue is," said Kourlis "We have a right to an impartial judiciary. The way to assure that right is to assure that the process by which the judges are chosen is impartial. And the kind of election that we're seeing in Pennsylvania is not that."

–CNN Senior Producer Bill Mears