If you thought the Congressional battle over tort reform and medical-malpractice liability was intense, check out what’s going on in the states.

In West Virginia, incumbent Democratic Supreme Court justice Warren McGraw is in a fight for his political life against Republican nominee Brent Benjamin.

[IMGCAP(1)] McGraw became a national target of business and medical groups who accuse him of being too sympathetic to plaintiffs. After narrowly surviving a primary challenge, McGraw now faces a barrage of ads in the general election that blast him for allowing a sex offender to remain on probation.

McGraw has the support of organized labor and trial lawyers, as well as the benefits of incumbency, name recognition and history (just one Republican has won a West Virginia Supreme Court race since 1928). His campaign manager calls the focus on the sex case “a dumbshit issue.”

But Benjamin has benefited from a reported $2.4 million spent by an independent group, And For The Sake Of The Kids. Of that total, $1.7 million — about a dollar for every resident of West Virginia — came from the pocket of Don Blankenship, the CEO of nonunion coal giant Massey Energy Corp. The race is poised to become the state’s most expensive judicial contest ever.

Meanwhile, in Illinois, Republican Lloyd Karmeier and Democrat Gordon Maag are battling for a Supreme Court seat representing southern Illinois. The contest is considered pivotal not just for the high court’s role in reviewing future litigation — including the appeal of a $10.1 billion damage award against tobacco company Philip Morris — but also because the next justice can temporarily fill judicial vacancies in lower courts, including those in Madison County, a jurisdiction known for siding with plaintiffs’ attorneys.

So far, a Democratic Party ad has attacked Karmeier, currently a lower-court judge, for being soft on violent criminals. The Karmeier camp, for its part, has charged that its opponents dug through a Karmeier supporter’s trash, and Karmeier’s finance chairman has sued two tort-reform opponents for allegedly harassing the man’s ex-wife, according to the St. Louis Post-Dispatch.

Through Oct. 10, spending on the race by the two candidates, the major parties and outside interest groups was $1.4 million, according to the Brennan Center for Justice at New York University Law School. Since spending in judicial races typically accelerates as Election Day approaches, most observers expect spending in this year’s race to exceed the previous state record, set just two years ago.

The Price of Justice

Judges are elected in 38 states, and in many of those states, voters cherish their right to choose the judiciary. But over the past few election cycles, state judicial campaigns have morphed from sleepy affairs into big-money, full-contact battlegrounds where business groups and plaintiffs’ attorneys duke it out. (To a lesser extent, Christian conservatives also have battled moderates.)

But this year, these fights have intensified. Spending on judicial primaries jumped from $130,000 in 2002 to $4 million in 2004, said Deborah Goldberg, the democracy program director for the Brennan Center, which is tracking spending on judicial races across the country.

Goldberg and others expect spending this year, including general elections, to match or exceed the previous record-setting cycle of 2000. According to Justice at Stake, a watchdog group and Brennan Center partner, the candidate who advertises more wins roughly 90 percent of the time.

One factor influencing campaigns this year is that it is the first cycle held since the U.S. Supreme Court decided, 5-4 in Republican Party of Minnesota v. White, that judicial candidates can take positions on issues they may later rule on. This has given outside groups added reason to get involved in judicial races.

Most strikingly, television ads for and against judicial candidates have aired in 15 states through mid-October — up from nine states in 2002 and four in 2000. Newcomers this year include Arkansas, Georgia, Kentucky, Louisiana, New Mexico, Oregon and West Virginia.

‘Interest Groups Are the Attack Dogs’

While gauging the negativity of ads is a subjective task, tabulations by Justice at Stake suggest that after a bitterly contentious cycle in 2000 and a relatively benign one in 2002, campaigns may be getting more aggressive again. While 82 percent of the ads aired by candidates themselves have been positive, those aired by interest groups are negative 62 percent of the time, the group found.

“Interest groups are the attack dogs in state judicial elections,” says Jesse Rutledge, a spokesman for Justice at Stake, which receives funding from the Carnegie Corp., the Joyce Foundation and George Soros’ Open Society Institute. Rutledge adds that business groups, doctors’ groups and trial lawyers are all “equally responsible” for diminishing public confidence in fair and impartial courts.

For the past several cycles, the U.S. Chamber of Commerce’s Institute for Legal Reform has been the business side’s 800-pound gorilla. With the help of member companies and state affiliates, it has spent millions of dollars on judicial and attorney general candidates in recent election cycles, with a high success rate.

This year, the Chamber is mum about what it’s spending and where, though unconfirmed reports peg it at tens of millions of dollars. Since disclosure laws vary state by state — and since some can easily be sidestepped — it is impossible to gauge the Chamber’s full impact.

“We don’t provide a lot of detail for a good reason: We don’t want to tip our hand to the other side, and there’s always a concern about retaliatory lawsuits,” says Sean McBride, the institute’s vice president for communications.

McBride credits the plaintiff’s bar with decades of insinuating itself into state legal systems — a reality, he says, that has forced business groups to play catch-up.

“We’ve come up to parity,” he says. “The business community has been quick to rally, understanding that if it’s left to its own devices, trial-lawyer money will have a very big impact in these campaigns.”

Trial Lawyers Argue Their Case

While many local affiliates of the Association of Trial Lawyers of America are taking an active role in judicial contests, ATLA asserts that its headquarters plays no direct role.

“ATLA does not get involved in any state judicial races,” said ATLA spokesman Carlton Carl.

Though trial lawyers have deep pockets of their own, plaintiffs’ advocates, and some independent analysts, suggest that they’re smaller than those of business groups.

“It’s not us” that people should be worried about, Carl said. “It’s the American families who are ill-served by these disguised campaigns to take away the most independent form of government they have — the courts.”

Most commonly, judicial battles break down on clear business-versus-trial lawyer lines. A good example is the Illinois race between Karmeier and Maag.

“This race is clearly national: Maag is a surrogate for national trial lawyers, big labor and the Democratic Party, and Karmeier is a surrogate for insurance, big business and tort reform,” says Kent Redfield, political scientist at University of Illinois at Springfield.

In West Virginia, too, the leading role of business groups and plaintiffs’ attorneys is clear, despite the intense focus on the sex-offender case.

“In the past, people have not been able to make the connection between judicial races and their everyday lives,” said Rob Capehart, Benjamin’s campaign manager. But increasingly, he said, West Virginians have come to realize how the costs of medical-liability insurance and car insurance hit their own pocketbook, which has made the McGraw-Benjamin contest “more than a down-ballot race.”

A.V. Gallagher, McGraw’s campaign manager, objects to the onslaught against his candidate. For one thing, he sees the sex-offender ads as a smokescreen.

“Tort reform is an infamous word — it doesn’t work,” he says. “So they focus on one dumbshit issue, a sexy issue. They blew past everything and rely on that one case.”

Gallagher also decries the support of out-of-staters, especially Blankenship.

“I’ve been licking people’s feet to get money, and then one guy spends $1.7 million dollars,” he says. “It’s disgraceful. They’re unabashedly trying to tell West Virginians how to vote. It’s this patrician view that they’re going to help out West Virginia because those people can’t help themselves.”

Capehart says the Benjamin camp is justified in focusing on criminal cases rather than civil-liability cases.

“We’ve actually thrown out a dozen different cases where he’s overturned Democratic circuit court judges,” he says. “The idea is that we need to draw attention to his extremism.”

Several other states this year feature a

distinct business-vs.-trial lawyer dynamic, including Mississippi, a state that has played host to several expensive and bitter judicial races in recent years; Montana, which has a hotly contested Supreme Court race this year; and New Mexico, a state not previously known for hosting expensive judicial races.

Moore Controversy

In other states, however, judicial contests have been driven by different dynamics. In Alabama — another state that has had more than its share of bitterly fought judicial contests in recent years — the court is now so conservative that the tort reform issue has faded, leaving behind an internecine struggle among Republicans, said Carl Grafton, a political scientist at Auburn University in Montgomery.

In Alabama, supporters and detractors of ex-state Supreme Court Justice Roy Moore have been fighting a shadow battle this year over Moore’s attempts to place a Ten Commandments sculpture in a Montgomery courthouse. Most spending occurred in the run-up to the June primary, when two candidates in the anti-Moore camp seized open seats and one pro-Moore candidate successfully ousted an incumbent.

Meanwhile, for pro- and anti-tort reform combatants in Nevada, judicial contests have taken a backseat to dueling ballot initiatives that would alternately cap or remove caps on court-imposed damages. In comparison, the two competitive open-seat judicial races are “much more personality- and name-recognition driven,” said Las Vegas-based political analyst Jon Ralston.

But a Nevada GOP consultant added that the attention being given to the torts issue could boost “the percentage of people who actually go as far down the ballot” to vote on judicial elections this year.

For critics of how judicial elections are run, North Carolina offers some hope. After a bitter judicial election season in 2000, the state Legislature reformed the way it runs its judicial campaigns, establishing public financing, contribution limits for candidates who opt out of public financing, and enhanced voter-information guides.

Whether such reforms spread as widely and rapidly as big-budget TV advertising, however, remains to be seen.