Following the Money to the Federal Courthouse

As long as giving money to politicians is considered a First Amendment right, Americans have to wrestle with the appearance that political influence is something to be bought and sold. The trail of cash doesn’t only lead to Capitol Hill and the White House. You can follow it to federal courthouses, as well.

Take John J. “Jack” McConnell Jr., a Providence lawyer whom the Obama administration nominated last week to become a federal judge. While Rhode Island’s two Democratic senators, Sheldon Whitehouse and Jack Reed, extolled McConnell’s “experience, intellect and temperament,” it warrants mentioning how much he’s paid into the political system. The Providence Journal reports McConnell and his wife have spread out nearly $700,000 over the past two decades to a variety of figures, including Whitehouse and Reed.

During the 2008 campaigns, the McConnells gave almost $160,000 to elect Democrats, including $77,000 to national party organizations that helped to finance the campaigns of presidential, Senate and House candidates, according to the Washington-based [Center for Responsive Politics]. The McConnells gave a total of $15,500 to the individual presidential campaigns of Mr. Obama; now Vice President Joseph R. Biden Jr.; Secretary of State Hillary Rodham Clinton; former Sen. John Edwards and New Mexico Gov. Bill Richardson.

While McConnell, a successful plaintiff’s lawyer who helped negotiate a $264-billion settlement with the tobacco industry, has been particularly generous, a few hours searching through CRP’s donor database showed that his largesse is hardly unique.

District court nominee Gary Feinerman and his wife donated $78,000 to Democrats over the years. District court nominee Richard Gergel gave $72,000 to Democrats, as well as $3,000 to Republican Sen. Lindsey Graham. Jeffrey Viken and his wife contributed $40,000, including $7,350 to Sen. Tim Johnson, who introduced Viken at his nomination hearing. The Senate confirmed Viken to the district court bench last September.

The list goes on: District court nominee Mark Goldsmith and his wife gave $25,300; appellate court nominee Jane Branstetter Stranch and her husband gave $21,850; district court nominee Marc Treadwell gave $20,500; district court nominee Elizabeth Foote gave $17,180; U.S. District Judge Abdul Kallon, confirmed in November, gave $9,620 (and $250 to Republican Sen. Jeff Sessions); U.S. District Judge William Conley, confirmed in March, gave $9,375; U.S. District Judge D. Price Marshall Jr., confirmed in February, gave $3,900; U.S. District Judge Dolly Gee, confirmed last December, gave $3,500; and U.S. District Judge Roberto Lange, confirmed last October, gave $2,900. Brian Jackson gave Louisiana Sen. Mary Landrieu $1,000 the very day Barack Obama won the presidential election. Landrieu went on to recommend Jackson to Obama and introduce him at his nomination hearing.

This phenomenon not restricted to Obama nominees. A 2006 investigation by the Center for Investigative Reporting looked at 249 of President Bush’s judges. It found that at least 23 percent of appellate judges and 16 percent of district judges gave campaign contributions even as they were under consideration for the bench. Some donated money after being nominated.

Judge Thomas Ludington of Michigan gave Bush $1,000, after being nominated in September 2002. Judge P. Kevin Castel of New York gave Bush $2,000 after Bush nominated him in March 2003. Judge Paul Crotty of New York gave $1,000 to Bush in June 2003, the same month he met with Bush officials about the judgeship. Judge Mark Filip of Illinois, who had volunteered as a Republican election monitor in Florida during the disputed 2000 election, gave the president $2,000 after Bush nominated him in April 2003.

The 65-page report goes into great detail. For instance, U.S. District Judge Gene Pratter and her husband gave more than $61,000 to Republicans, including a combined $23,500 to Pennsylvania’s senators, Republican Sen. Rick Santorum and then-Republican Arlen Specter. The chronology around her nomination carries with it a strong whiff of quid pro quo.

• Spring 2003: Pratter interviews with the Pennsylvania judicial nominating commission, which recommends her,according to her Senate questionnaire.

• February-March 2003: Specter receives $1,500 from Pratter.

• July 2003: Pratter is interviewed by the White House Counsel.

• July 9, 2003: The Republican National Committee registers a $355 contribution from Pratter.

• Aug. 5, 2003: Santorum receives a $500 contribution from Pratter.

• September 2003: Pratter is again interviewed by the White House Counsel.

• Sept. 15, 2003: Bush receives $2,000 each from Pratter and her husband, Robert.

• Nov. 3, 2003: Bush nominates Pratter.

• Jan. 5, 2004: Santorum’s political action committee registers a $500 contribution from Pratter

Pratter’s donations must have attracted attention of the Bush administration and her home state senators, but was it enough to put her nomination over the top? When it comes to political contributions, like everything else, correlation does not necessarily equal causation. Just because certain nominees dish out cash does not automatically mean they bought their nomination, or that they’re cronies, or hacks. It would be unfair to conclude out of hand that they can’t be smart, fair, intellectually honest judges.

At a minimum, I think these donations are a reminder that judges are political actors. The federal system doesn’t require them to win elections to take the bench, as many states do, so they’re not straight-up politicians. This buffers the judiciary from the pressures of the public and, ideally, grants independence. Yet judges are not indifferent to or above politics. Indeed, some have long histories of literally investing in it.

(Photo Credit: Flickr user Rojer used under a Creative Commons license)