Alabama Judge Says Raising Money To Be Elected Is 'Tawdry'

March 31, 2015

Guests: Sue Bell Cobb - Billy Corriher

TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross. We're used to lots of political ads on TV in election season, but more and more these days, we're also seeing ads for judicial candidates.

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UNIDENTIFIED MAN: She put thousands of criminals in jail. Her house was firebombed, but Judge Sue Bell Cobb only grew stronger, more determined.

GROSS: In some states, judges are appointed by the governor or by a bipartisan commission. But in 38 states, judges are elected, and that means they have to raise money for their campaigns. They ask for money from lawyers, big business and unions - people who very well might end up with cases that come before these judges in court.

Our guest today, Sue Bell Cobb, became the first female chief justice of the Alabama Supreme Court after running in the most expensive judicial race ever in the U.S. in 2006. She recently wrote an article for the online news site Politico with the title "I Was Alabama's Top Judge. I'm Ashamed By What I Had To Do To Get There." Justice Cobb retired from the bench in 2011, after a 30 year career as a judge. Later, we'll hear from Billy Corriher, who studies money and judicial elections for the Center for American Progress. FRESH AIR contributor Dave Davies spoke with retired Justice Sue Bell Cobb.

DAVE DAVIES, BYLINE: Well, Sue Bell Cobb, welcome to FRESH AIR. When you ran for the Alabama Supreme Court in 2006, it was, I guess, the most expensive race of the year - maybe ever, right?

SUE BELL COBB: Well, it was the most expensive in judicial race in the United States of America in the year 2006. It is - now remains of the second most expensive race ever run for a judicial position in this nation.

DAVIES: How much did you raise and spend?

COBB: And I raised and spent 2.6 million. My Republican opponent raised and spent 5.5 million. And then some other third groups supporting him raised some additional funds, but that's really not calculated in these numbers.

DAVIES: You write in your Politico piece you were Alabama's top judge, but you were ashamed by what you had to do to get there. How would you do it - pick up the phone every day and call who - lawyers, friends?

COBB: I had to hire a campaign strategist and a full-time fundraiser, and that's what I did. We knew we could not get our message out unless we were able to get on TV. And people understand that for most races, but when it comes to judges having to do that, the issue of how you raise that money becomes problematic.

DAVIES: Right. And television ads are very expensive to buy on stations, thus you need a lot of money. So you would make the initial call, but you wouldn't directly ask for money, right?

COBB: Well, I placed a personal ban on myself, meaning Alabama does not - as does the state of Florida and other states - have a ban against the judges or judicial candidates personally asking for money for their campaign. I placed it on myself so that when I called individuals, most of whom I knew - not all of them, but most I knew - and when I would ask, I'd talk about their family. I'd talk about law school if we'd been in law school together. I'd talk about their practice.

And then either they would say, well, Judge, what can I do to help you? And then I would say, well, I really need your help in every way that you can help me. Would you mind talking to my finance director? And then he would talk to them about money, about how much they could pledge. I mean it really was like a business trying to finance the campaign.

And you know it's just sad when judges have got to have their hands out from people that you know that either they're going to be in court in front of you, the businesses are going to be in court in front of you, the lawyers are going to be in court in front of you at some point in time. It's just not the way that judges ought to be elected because it is really tawdry. It's difficult. It's demeans the court, demeans the position. It's just not appropriate. It absolutely makes people think less of the courts and judges. Nobody wants judges to have their hands out.

DAVIES: Right. And although, you know, you wouldn't talk about an amount with the potential donor, once they had the conversation with your finance director, and they made a contribution, you, of course, knew exactly what they had contributed. Everybody knows. They're on publicly available reports. Do you think there's really a difference in terms of the potentially corrupting influence, if, after all, I mean, they know and you know that they're going to know what you gave?

COBB: I absolutely agree with what you're asking. No, I don't think it made a difference. I think it was semantics. It made me feel better. And in some cases, I can say - and I saw - that they would commit to me any and all support. When they talked to my finance director, they would tell him, you know, Ben, I really want to help her. I admire her. I want to help her, but I don't have the money.

And that's when it became so crystal clear to me that it was like legalized extortion. We can do it ethically, legally. Judicial candidates in Alabama and in several other states can do it, but Florida's got it right. Florida has got it right with a ban against judges and judicial candidates personally soliciting for contributions.

DAVIES: So you were in the position of speaking to attorneys who might very well appear before you if you were successful. You were successful and became the first woman Supreme Court chief justice in Alabama, right?

COBB: That's correct.

DAVIES: Right. How often did it happen that someone came before you in a case, either as a party or as an attorney, who had made a significant contribution to your campaign?

COBB: Well, most of the cases, as you can imagine, were not impacted at all. I mean, there - I can't even - as far as quantifying the number of cases, it would be hard to do that. But I can tell you the higher profile cases, the larger verdict cases - they may not have given to me directly, but they gave to a PAC, which are political action committees. In Alabama, it's still legal, appropriate to receive PAC money. I would say very, very often, and for instance, I think it's a pretty logical for people to understand. Why would people give if they weren't continually, systematically coming in front of the courts?

DAVIES: Is there any limit on campaign contributions in Alabama?

COBB: There is a limit, but to be honest with you, it doesn't really make a difference because once you can give to a PAC that has - where you can basically combine resources from infinite number of sources, and then that committee that makes the contribution. It shelters people and makes it extremely difficult for people to know who actually gave you money. It certainly goes against that the idea of transparency. All the reporting that we do that's required, that every state has - Alabama has it, as well - it's just undercut significantly because of the fact that we can receive money from PACs.

DAVIES: Right. Money gets routed through political committees. Does that mean that you, the candidate, wouldn't even necessarily know who gave you the biggest checks because it went through a third party?

COBB: No. No, if anybody told you that, I don't think that they would be - they would be truthful.

DAVIES: So you know.

COBB: Because when pledges were made, we knew who made the pledge.

DAVIES: You write that you can never - you can honestly say you never made a decision on a case in which you sided with a party because of a campaign donation.

COBB: No.

DAVIES: And I'm sure that's true. On the other hand, I've got to believe this can work in very subtle ways. I mean, I assume that when you're in the middle of a heated campaign and you need money to get your message out, you remember who the large donors are. And I wonder if you're on the bench, you look out, and there's an attorney. They're a large donor. (Laughter) Do you remember the amount? You know, I wonder if it's not hard to at least think, well, gosh, this person at least had the good judgment to support a jurist as such as myself.

COBB: (Laughter) I think - believe me, I totally agree with that concept. No, as Justice Sandra Day O'Connor said that you would have to be a saint to not allow the knowledge of significant contributions to have an impact on you and your decisions, and judges are not saints. And I agree with that totally. But I found, for me, personally that I would attempt to recognize, yes, that person had contributed 'cause you couldn't - you knew it. How would you not recognize it? And then mentally make the decision to put it aside and do the right thing.

And I often said when I was a trial judge because I became a judge at 25, which is - I was probably the youngest judge ever in the state of Alabama, and that is - maybe the nation. And I would say to people when they would say, oh, my gosh, how was it that at 25, you had so much power? And I said to them, I guess it shows perspective about power because of your internal moral compass is of the sort that you've simply got to do the right thing, and here's the law, and here are the facts, and you have got to do the right thing as close as you can discern the right thing to be, where's the power in that?

DAVIES: You never made a decision based on a campaign contribution, but you write in the piece...

COBB: Never.

DAVIES: You write in the piece that you wrote in Politico that there are some pretty troubling cases where that appears to have happened, right?

COBB: Well, I also say in the Politico article - that op-ed piece in Politico - that I don't believe that any justice did anything unethical. I mean, I don't believe that...

DAVIES: You mean on your court.

COBB: On my court, what I do not think took place was any quid pro quo. I don't think any justice of the Alabama Supreme Court said, give me this money. I'm going to rule with you. Or that business said, we're supporting your campaign. We expect you to rule with us. I don't think that happened. I truly, absolutely do not think that happened. But I think that with the ratcheting up of money, the negative campaigns, with that additional funding, it made it possible so that less qualified individuals with less experience were elected - not always because of some of Republicans were unbelievably qualified. But it enabled people to fall back more on a personal philosophy as compared to experience and the law.

DAVIES: We're speaking with Sue Bell Cobb. She is a retired chief justice of the Alabama Supreme Court. We'll continue our conversation in just a moment. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And if you're just joining us, we're speaking with Sue Bell Cobb. She was the chief justice of the Alabama state Supreme Court, and she's written about problems associated with electing judges, particularly the fact that they have to raise so much money, often from folks who appear before them.

You were in a campaign that was very competitive. You had to have messages that really reached voters on television because your opponent was also having very pointed messages. Can you share a moment that was difficult for you in terms of, you know, maybe putting something out into commercial that you weren't entirely comfortable with?

COBB: I can. Most of the ads that we put out for public consumption - and I'm very proud of them - they resonated with people. And they were more bio ads, like the fact of my trial court experience, the fact that my house was firebombed when I was a trial judge - various things about my experience as a judge on the bench.

But when the - as the campaign went on, it became clear it was very tough. We were very close, and I agreed to an ad that - where basically, it talked about me in various - I think it was the only ad - that I was the only wife and mother in the race, that I was the only person who played the piano (laughter) at church, that I was the only person who'd been on the bench - the only candidate that had been on the bench. And it also said that I was the only candidate who had not received insurance or oil money.

The reason why that was very problematic for me is that it was true, I hadn't received any money, but it could also give an incorrect perception that I would be against insurance companies and oil companies if they came before the court, which of course, they did. And sometimes I ruled with them, and sometimes I ruled against them. But the point was is that the ad - if you looked at the ad, it would lead you to believe that I would rule against them, which was not something that I was going to do.

DAVIES: I want to talk a little about some of the other ads that aired in that race. Were you attacked in that race?

COBB: Yes. There were numerous negative ads in my chief justice race in 2006.

DAVIES: What did they say about you?

COBB: My memory is that the direct-mail ads that were placed against me were run by the Republican Party, primarily. And they basically showed pictures of me with a screaming face and basically just said that I was going to do nothing more than whatever Hillary Clinton, Ted Kennedy and other national Democrats would do, which had nothing to do with the race for chief justice - absolutely nothing. They twisted some contributions that I had. They magnified them greatly. They tried to show some - in some convoluted manner, who would give me money, and then tried to insinuate that I was only supported by gambling, prior felons and trial lawyers.

Well, people would know me, they - nothing could be further from the truth. I mean, they - I had more individual donations, significantly more than my opponent. And people knew, through my long-time career, that that just wasn't Sue Bell Cobb, and that wasn't the judge Cobb that they knew. But the people that didn't know me had to have been influenced by those direct-mail pieces. And we saw it in the numbers. Those direct-mail pieces hit right at the last week, and my numbers - I was ahead with a fairly significant lead, and we saw my lead narrow each day as those direct-mail pieces hit. And being the Democrat from a state where the coffers were much smaller, I didn't have any direct mail. I had no money for direct mail. And so there was no way to respond.

Also interesting, I had gone to my opponent, who really - he's an exceptional man. He really is. He's an exceptional person. And I'd ask him for us to pledge to not run negative campaigns and that if an outside group placed a negative campaign against each of us, that we would immediately go on the radio or the news or TV, press conference, whatever, and disavow that negative ad. And unfortunately, my opponent did not feel that he could do that.

DAVIES: Now, I have to ask you. Did your campaign attack your opponent with negative ads or mailings?

COBB: What I tried to do was to basically do a comparison of our qualifications. My opponent - he had never been a trial judge, and he had spent the last two decades of his career in the insurance business running an insurance company. And there's just a - there was a huge difference between our qualifications, where I had been in the courtroom making the tough decisions, both in the trial court and the appellate court. So I tried to keep our ads - my ads - our ads - my campaign ads against my opponent much more focused on our qualifications.

DAVIES: I want to ask you about something in your days as a trial judge. You said your house was firebombed. Is that right? What happened?

COBB: That's right. That's right. When I was a trial judge, I had juvenile cases as well as a variety of other misdemeanor and variety of other kind of cases. And I had a case involving a person that I believe had significant mental issues but also came before me for a horrific child abuse case. And later, that person - we never could prove the case. We never could - never was a case made. There never was a charge brought on the arson, but that person went into my house when I wasn't there and threw in, basically - well, you would call it a Molotov cocktail - and tried to burn my house down. And that was September the 3, 1989.

DAVIES: Did it make you re-examine your commitment to serving as a judge?

COBB: It absolutely did, Dave. And I'll tell people, I understand what it's like to be a victim because my peace was stolen. There was somebody that was trying to do me harm, and it significantly impacted my sleep and a number of other things. You know, it made me look at the fact that you - and people need to understand that a judge's role is unbelievably difficult. And the reason it's difficult is that you're dealing with cases that most people don't even want to hear generally about, much less the specifics. They certainly don't want to face the children that are molested or the women that are raped or the horrific details of a violent crime. They just - most people don't want to go there, but a judge has to. That's day in, day out, they - basically, it's been called, like, an endless procession of broken promises and brutal acts. That's what being a judge is.

And you just have to recognize with the job that you're dealing with people that have - many of them have significant mental health issues. They've - are - many - most of those, particularly in the criminal arena, have drug and alcohol issues. You're just dealing with people, many of them not stable. And so the chance of something like this happening is - it definitely can happen.

DAVIES: In 2011, you decided to resign as chief justice. Why?

COBB: Well, I've been asked that question many, many times 'cause it probably was the most difficult decision I've ever made. I had been a judge, shy of a couple of months, 30 years, and my mother was 87 and was in rapidly declining health. She was having multiple strokes, and I desperately wanted to be more active and more involved in my mother's care.

DAVIES: Were you prepared to do another campaign if you had to?

COBB: I can tell you that being chief justice of the Supreme Court of Alabama was more than a full-time job. In fact, I characterized it to most people that if you did the job right, it was like two-and-a-half full-time jobs. There was absolutely no way that I could do the job that was required for the people of Alabama and raise the amount of money that it was going to take to be re-elected. There was no way I could do it. So the time away from the office is a significant reason why we should not have judges selected the way they are selected in most states in the United States.

DAVIES: Well, Justice Sue Bell Cobb, thanks so much for speaking with us.

COBB: Thank you, Dave. It has truly been an honor being on FRESH AIR.

GROSS: Sue Bell Cobb is former chief justice of the Alabama Supreme Court. She spoke with FRESH AIR contributor Dave Davies. After a break, we'll talk more about special interest money in judicial campaigns with Billy Corriher of the Center for American Progress. I'm Terry Gross, and this is FRESH AIR.This is FRESH AIR. I'm Terry Gross. Earlier in the show, Sue Bell Cobb told us that when she campaigned to become chief justice of the Alabama Supreme Court, she was troubled by having to seek campaign contributions from lawyers and others who might appear before her in court. In some judicial campaigns, the money raised by candidates is being overshadowed by the contributions from PACs and outside groups. Billy Corriher researches judicial elections for the Center for American Progress, and he sees a flood of money pouring into state judicial elections from national political organizations that have an ideological agenda. Corriher says that the Citizens United ruling by the U.S. Supreme Court, which opened the door to increase spending on political campaigns, is now creating multimillion dollar judicial campaigns in some states. Corriher spoke with FRESH AIR contributor Dave Davies.

DAVIES: Billy Corriher, welcome to FRESH AIR. How common or uncommon is electing judges - the thing we do in the U.S. - internationally, that is?

BILLY CORRIHER: Internationally, it's very uncommon. Really, the only other country that elects judges to the same extent that America does is Bolivia. And they've only been doing that since 2011, so the United States is really an outlier.

DAVIES: You've written a lot about the kind of spending that occurs in judicial races. I mean, candidates will raise and spend a lot of money. But we also see this phenomenon of groups that are not associated with a candidate coming in and spending a lot of money. What kind of numbers are we seeing? What kind of spending are we seeing in state judicial races?

CORRIHER: Well, in 2014, I believe we saw $14 million spent in Supreme Court elections across the country, and that was a record for a midterm election. Out of that 14 million that was spent last year, over 50 percent was independent spending for the first time.

DAVIES: So who are the big spenders in this - the outside?

CORRIHER: Well, really, one of the biggest groups last year was the Republican State Leadership Committee. And this is a group - it's a Republican Party group based in D.C. And up until recently, they were focused on electing state legislators around the country, and they also helped with redistricting and maybe some other policy matters. But in 2012, they spent money in a judicial race for the first time. That was the North Carolina Supreme Court.

And this year, they rolled out something called the Judicial Fairness Initiative, which was basically a plan to spend money in a lot of different judicial elections throughout the country. And given the resources of, you know, this national political organization, I think they have the potential to really dominate judicial elections if they keep spending to the degree that they did last year.

DAVIES: OK, so this is odd. I mean, you have the notion behind electing, you know, state Supreme Court justices, for example, as the idea that the citizens of that state will have some idea of who's qualified and support the best candidates. Here, we're having groups that are collecting donations from around the country - people that don't live in those states, don't know who the candidates - and they're willing to put huge amounts of money into particular races. Why?

CORRIHER: Well, that is the - (unintelligible) question, I think, quite literally. You know, in our research, we've looked at the interests of a lot of people who are donating to campaigns. And I think you can really break it down into two groups - trial lawyers and big business. And trial lawyers usually refers to folks who represent plaintiffs and personal injury or tort cases. And so they spend money to elect judges that they perceive as, you know, more favorable to plaintiffs in civil cases. And big business has a very opposing goal of electing judges that, you know, tend to favor defendants in the same types of cases.

And when you look at the type of litigation that these courts handle, you know, most of the litigation - over 90 percent of litigation in America happens in state courts. So, you know, even these multinational companies can't have a lot of money on the line in state courts.

One donor that we profiled is Duke Energy, which is the largest power company in America. It's based in North Carolina. They've spent a lot of money - well, they've given a lot of money to the RSLC and other groups that have spent money in North Carolina Supreme Court races. And at the same time, they're facing really large lawsuits with billions of dollars at stake in the same court system where they're spending the money to the elected judges.

Now, the RSLC, of course, has a ton of donors. They're a national organization. Some of their biggest donors include insurance companies, pharmaceutical companies. And, you know, those kind of companies face a lot of litigation, and they really have a financial interest in who sits on state Supreme Courts.

DAVIES: OK. Let's talk about some of the particular issues that are relevant to these contributions. And you're not, in general, talking about a particular company seeking to influence a particular court in a particular case, right? These are essentially ideological divides, right? They want judges who think a certain way.

CORRIHER: I think so, in general. Now, we have seen a lot of cases where there are specific companies or specific lawyers involved. I think the most well-known example was the 2004 West Virginia Supreme Court election.

DAVIES: Tell us about that one. Yeah.

CORRIHER: Yeah, that was a really interesting race. Don Blankenship, who was the CEO of Massey Coal Company, was facing a $50 million verdict in a lawsuit from another coal company. Basically, it was a smaller coal company alleging that Massey had run them out of business, and they won a $50 million verdict at the trial court.

And while that verdict was on appeal, Mr. Blankenship spent $3 million of his own money to elect a justice to the West Virginia Supreme Court. Now, this justice had only spent about $300,000 himself. So Massey came in and spent 10 times as much money as the candidate, and the candidate won. But the problem really arose when the $50 million verdict came before this justice, and he refused to recuse himself, even though he benefited from all the spending from Don Blankenship. And he voted to overturn the verdict, so was a pretty good return on Don Blankenship's $3 million.

However, the U.S. Supreme Court eventually intervened and found that this conflict of interest violated the due process rights of the other party, the small business that had sued Massey Coal. So that was really one egregious conflict of interest. And, you know, unfortunately, I don't think that we've seen any federal courts really, you know, finding any other situation where that case applies, where the conflict of interest is so great that recusal is required under the U.S. Constitution.

DAVIES: You said the biggest spender among these outside groups is the Republican State Leadership Committee. And you said they often look for candidates favorable to big business in their approach to things like liability cases. What about the other side? I mean, are the Democrats in the game, too?

CORRIHER: They are, but I don't think that these days - in most states, they're just not as competitive. You know, I think before the explosion in campaign cash, before we saw the kind of multimillion dollar races we're seeing today, I think that trial lawyers kind of had the game to themselves before big business decided that they wanted to become a player in judicial politics.

But I think that, unfortunately for lawyers, tort reform has not only made it harder for injured plaintiffs to get justice, it's also made it harder for trial lawyers to make a living. So in a lot of states where they have these tort reform laws, it's harder for the lawyers the kind of scrounge together the money to spend.

And unions sometimes are players in these elections. We saw them in the Wisconsin Supreme Court election from 2011. They gave some money to an independent spending group. But I really think that's sort of the exception these days. I can only name a handful of times were a liberal group has started running ads in a Supreme Court election.

DAVIES: So you say that as tort reform advances, trial lawyers are less able to make financial contributions. I can imagine a lot of listeners thinking, oh, what a shame. These lawyers...

CORRIHER: Right (laughter).

DAVIES: ...Have to come back to one country club and Jaguar.

CORRIHER: Well, yeah, I mean, that's fair. But, you know, when I look at the situation in state courts right now, I don't think about the trial lawyers and, you know, how much money they're making. I think about their clients. I think whenever we pass these tort reform laws, we really limit people's options. And usually whenever we're talking about these caps on damages that limit the amount of money that a jury can award, you know, that really impacts the people that are hurt the most, the people that would've had these big awards because their injuries were so severe. So I think that tort reform is really hurting a lot of injured patients, a lot of injured workers and consumers, probably a lot more than it's hurting their lawyers.

DAVIES: Let's look at some other hot button issues in the judiciary. I'm wondering to what extent they've attracted outside money. Voting rights cases - there have been cases about, you know, voter ID - a lot of laws that affect voters. Have they - have those issues drawn outside money?

CORRIHER: Well, you know, when we look at the RSLC, that is one group that I've sort of talked about in the voting rights context because, you know, they have - they have a record of helping states pass voter ID laws and helping them draw redistricting maps. They actually developed a software that helped state legislators draw these redistricting maps. And so they're very involved in what's going on with changes to voting at the state level. And at the same time, they're spending a lot of money to elect judges that are going to review these laws.

I think, you know, that was at least my personal theory for why North Carolina popped onto the radar in 2012. It was at the time, there was a lawsuit pending in state court over the redistricting map that the legislature had drawn in 2011. And there were not any other, I think, similar high-stakes lawsuits pending for the RSLC at the time. And I think that might be why, you know, they chose North Carolina in 2012.

DAVIES: Billy Corriher is director of research for legal progress of the Center for American Progress. We'll continue our conversation in just a moment. This is FRESH AIR.

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DAVIES: This is FRESH AIR. And if you're just joining us, we're speaking with Billy Corriher. He is the director of research for Legal Progress at the Center for American Progress.

I want you to talk a moment about Iowa, where same-sex marriage became an issue in some retention elections. Tell us what happened there.

CORRIHER: Well, in 2009, the Iowa Supreme Court ruled that the state's ban on same-sex marriage was unconstitutional. The court found that it violated the rights of same-sex couples. And Iowa's really, I think, one of the early states out in the Midwest to issue this kind of ruling. And basically, in the 2010 retention election, there was a campaign by social conservative groups - the National Organization for Marriage and other anti-marriage-equality groups - to have these three justices thrown off the bench, and it was successful. These groups came in from out-of-state and spent over a million dollars. No one else spent any money. The candidates themselves didn't even spend any money.

DAVIES: Retention elections are normally no contest at all, right? Judges always win.

CORRIHER: Yeah, pretty much. I mean, there are a couple of high-profile instances from the late '80s and one from the early '90s where judges had lost in retention elections. But you know, the Iowa Supreme Court was the first time that it happened to three justices. And it's the only time it's really happened since then, so it was really unprecedented.

I think that this issue of same-sex marriage is going to become more important in state courts. I think after the U.S. Supreme Court issues their ruling this summer, you know, the focus is going to shift to state courts because federal courts do not conduct marriages. So you know, we've seen, in Alabama, this huge pushback from the elected judiciary against marriage equality. So that's one thing they're really going to be looking at next year kind of as the marriage equality fight moves to state courts - are there going to be more of these social conservative groups spending money?

DAVIES: We've talked a lot about issues in states where judges are elected. In New Jersey, they've had a system of appointing judges for a long time, but there's a huge political controversy there involving the governor, Chris Christie. You want to explain that?

CORRIHER: Yes. Well, New Jersey has an interesting system. It's the only state that has a system like this. And basically, at the beginning, it's like the federal system. The governor nominates an appointee, and the state Senate has to confirm that person before they can take their seat. But the wrinkle is that after seven years on the bench, these justices have to be reappointed by the governor and reconfirmed by the legislature.

Now, that system had been in place for decades before Chris Christie came along, and no justice had ever been denied a reappointment or reconfirmation. Even governors who severely disagreed with how these justices ruled would still reappoint them as long as they were able to do their job and there was no issue with their performance. And there was sort of an unwritten rule that the justices would being reappointed and reconfirmed unless there was some issue like that. But Chris Christie kind of threw that out the window. He said, I don't like the way the New Jersey Supreme Court is ruling. I think that the court is liberal. He pointed specifically to a series of affordable housing cases and a series of cases about school funding in New Jersey. He said that those cases had cost the state a lot of money, and for that reason, he felt the need to reshape the court. And so in 2010, he declined to reappoint Justice John Wallace, who was a very well-respected judge, and really upset the state Senate, who then refused to confirm any replacement for Justice Wallace. And there are a couple of vacancies that have been on the New Jersey Supreme Court for a long time.

You know, to me, the problem with that case was that the rule of reappointment was sort of unwritten. I think that if the rule had been written in a way that made it clear that justices should be reappointed unless there's a problem with their job performance, then I don't think this problem would've emerged. But you know, even in other states, we see issues where governors are trying to influence the court. I mean, I think it's sort of a natural tension between the political branches and the courts.

DAVIES: Well, you know, here in Pennsylvania, I mean, just in the last year, we had - well, maybe within the last two years - one judge convicted in a corruption case and a second judge resign under an ethical cloud. That's out of a Supreme Court of seven justices. And people have been advocating merit selection in Pennsylvania for 30 years. It never seems to gain traction. What's the trend nationally? Are people moving in the direction of appointed judges, or are electing them here to stay?

CORRIHER: You know, I think if you look at the polling, a lot of folks really like the idea of electing judges. I think that in theory, it appeals to them. I think part of that is a lack of an appreciation for a judge's role in, you know, in government. Judges really have to be independent of any kind of political pressure because they're ruling on cases that impact individuals before them. Legislators don't really do that as much. So you've got individuals whose rights are on the line, and their rights are being sacrificed, I think, on the altar of judicial elections.

So it's a popular idea. I don't think it's a very good idea. But I think that one thing we can focus on is, if we do have elections, we need reforms like public financing of elections, and we need really strong rules on when judges should recuse themselves in cases involving camping contributors. I think there are a lot of steps that we can take short of appointing judges that would make a big difference.

DAVIES: What are some other reforms you'd like to see?

CORRIHER: Well, I think that we need stronger rules governing the ethics of judges. Most states right now just basically leave it up to the judge himself or herself to decide whether they should hear a case involving a campaign contributor. Some states allow the rest of the court, with that judge abstaining, to hear the motion for recusal. I think that's an improvement.

But what I think we really need is a - are clear, bright-line rules that say, if a judge has received more than X amount of money from an attorney or litigant, then the judge can't hear that case. Only a couple of states have anything like that, and I think that would go a really long way towards alleviating all these concerns that we have about campaign contributions influencing judges.

DAVIES: One problem with that, I suppose, is that if the contributions come in the form of one of these groups that does not reveal donors, in the case of dark money, who's to know what the contribution was?

CORRIHER: Yeah, that's a very good point, Dave. And it's something that I think reformers really don't have much of an answer for because if anyone's going to be concerned about a conflict of interest, it's going to be the party to the case - the litigant, the person whose money or, you know, or freedom is on the line. If they can't find out who gave the money, then they can't ask the judge to recuse himself or herself. Hopefully, if these groups actually are independent of the campaign, then the judge won't know, either, who gave the money. But we've heard reports of some states that judges are aware of who's spending the money, even if it's not disclosed to the public.

DAVIES: Well, Billy Corriher, thanks so much for speaking with us.

CORRIHER: Thank you for having me.

GROSS: Billy Corriher spoke with FRESH AIR contributor Dave Davies, who is also WHYY's senior reporter. Coming up, rock historian Ed Ward tells the story of the influential avant-garde musician Captain Beefheart. This is FRESH AIR.

TERRY GROSS, HOST: This is FRESH AIR. In 1970, Warner Bros. Records had an unusual philosophy. They'd sign artists, and instead of going for a hit single immediately, the label developed the artist over several albums. That approach gave big career boosts to James Taylor, Joni Mitchell, Little Feat and Randy Newman. Warner Bros. also took a chance on Captain Beefheart. And although neither a hit single nor a hit album resulted, some very interesting music did. Rock historian Ed Ward has the story.

(SOUNDBITE OF CAPTAIN BEEFHEART SONG)

ED WARD, BYLINE: Art, Don Vanvliet, a.k.a. Captain Beefheart, once said, is re-arranging and grouping mistakes. Apparently he was referring to his paintings when he said it, but it's certainly applicable to his compositional technique and the way he recorded his music. Some might find the music disjointed, and, in fact, nearly everyone does on first listen. But there comes a moment when it snaps into place. The groupings make sense.

Certainly nobody was prepared for "Trout Mask Replica," the infamous double album Beefheart and the Magic Band cut for Frank Zappa's Bizarre label, but the controversy of its accessibility, plus the fact that it had rabid defenders, made Warner Bros. think it might be a good idea to sign them and see what happened. What happened was "Lick My Decals Off, Baby," featuring a new lineup of the Magic Band.

(SOUNDBITE OF SONG, "I LOVE YOU, YOU BIG DUMMY")

DON VAN VLIET: (Singing) I love you, you big dummy (laughter). I love you, you big dummy. Nobody has love. Love has nobody. I love you, you big dummy. Breathe deep. Breathe high. Breathe life. Don't breathe a lie. I love you, you big dummy (laughter).

WARD: "I Love You, You Big Dummy" is about as straightforward as the songs on this album get lyrically. But as always, Beefheart reached back to his concept of the blues for others.

(SOUNDBITE OF SONG, "THE BUGGY BOOGIE WOOGIE")

VLIET: (Singing) Oh, that buggy boogie woogie sweeps me off my feet. What this world needs is a good retreat. What this world needs is a good $2 room and a good $2 broom. What this world needs is a good $2 room and a good $2 broom. One day I was sweeping down by the wall. I bumped a mama spider and the babies begin to fall off of my broom.

WARD: Although many Beefheart fans, many of them musicians, declare "Lick My Decals Off, Baby" as their favorite of his albums, it didn't set as well with the general public. But for Warners, this was no big deal. A lot of their artists weren't shifting units, and they had enough who were that it wasn't an issue. So he went back into the studio in the summer of 1971 and recorded "The Spotlight Kid." The song structures were way more conventional here.

(SOUNDBITE OF SONG, "CLICK CLACK")

VLIET: (Singing) Two trains, two railroad tracks, one going and the other one coming back. There goes my baby on that ole train. I say come back, come back, baby, come back.

WARD: In many ways, a rewrite of the classic blues song "Two Trains Running," "Click Clack" was a train song ala Beefheart, hardly avant-garde at all. Beefheart, an animal-lover from childhood, also wrote a nice song about the environment that's still as sharp today as it was when he wrote it.

(SOUNDBITE OF SONG, "BLABBER 'N SMOKE")

VLIET: (Singing) All you ever do is blabber and smoke. There's a big pane in your window, and all your waters turn to rope. It's going to hang you all, dangle you all, dang you all. If you don't hurry, there will be no hope.

WARD: After "The Spotlight Kid" failed to ignite sales, Warners gave Beefheart the treatment. Ted Templeman, who produced the Doobie Brothers, went into the studio with him. There was a horn section and backup singers, and they packaged the record pressed on clear plastic in a transparent plastic sleeve. "Clear Spot" was going to be the breakthrough. It even had a single.

(SOUNDBITE OF SONG, "TOO MUCH TIME")

VLIET: (Singing) I got too much time to be without love, too much time. I got too much time. I got too much time, too much time to be without love. In my life I got a deep devotion, white as the sky and deep as the ocean. Every war that's waged makes me cry. Every bird that goes by gets me high. Sometime when it's late and I'm a little hungry, I heat up some old, stale beans, open up a can of sardines and eat crackers and dream about somebody that can cook for me.

WARD: Alas, it had the luck of the others. And although it had some of his best work yet, Warners eventually cut him loose. Don Van Vliet would wander in the wilderness for a few more years of bad choices and bad records. But he'd eventually get rescued by a new Magic Band, a new label and, most importantly, a new generation raised on punk that had a better idea of what he was trying to do - not that he sold any better, but he was making great music again.

GROSS: Ed Ward lives in Austin. He played music from Captain Beefheart - "Sun, Zoom, Spark: 1970 to 1972" on the Rhino label. Tomorrow on our show, my guest will be Russell Davies, the creator of a British TV series about two middle-aged gay men.

(SOUNDBITE OF TV SHOW, "BANANA")

UNIDENTIFIED ACTOR #1: (As character) Will you marry me?

UNIDENTIFIED ACTOR #2: (As character) No.

UNIDENTIFIED ACTOR #1: (As character) (Laughter) OK.

UNIDENTIFIED ACTOR #2: (As character) Where did that come from? We've never even talked about it. I mean, why on Earth would we do that?

GROSS: The series, "Banana," is about the premier on American cable along with Davies's companion series "Cucumber," about young LGBT people. He also created the BBC series "Queer As Folk." I hope you can join us.

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