Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Should Microsoft’s Top Lawyer Donate Money to Unseat a Judge?

Nov. 1, 2016, 2:11 PM

Microsoft’s chief legal officer Brad Smith has attracted attention in recent years for his company’s lawsuits that accuse the government of violating the Constitution in its efforts to obtain customers’ data.

But now some legal scholars are looking at Smith, along with Microsoft’s co-founders Bill Gates and Paul Allen, for a different reason: Campaign finance reports show they’re part of a group that donated more than a half million dollars to a political action committee that aims to unseat an incumbent state Supreme Court justice in Washington state.

The Seattle Times reported Justice Charles Wiggins — whom Gates, Smith and others are trying to unseat — wrote the majority opinion in a case that overturned a man’s conviction for possession of child pornography. Wiggins also joined a majority ruling that deemed Washington state’s charter-schools law — which allowed publicly funded but privately operated schools unconstitutional, a law that Gates and others had supported.

Wiggins is one of three Supreme Court justices in Washington standing for reelection, and who faces political action committees that together have raised more than $900,000 to spend against him. The political action committee that Gates and others donated to is running ads in support of Wiggins’ challenger, while a separate political action committee is portraying Wiggins as soft on crime based on the child pornography ruling.

While political donations are not unusual, even in state Supreme Court races, some scholars have objected to their impact on the legal system, and how they affect judges’ ability to apply the law fairly, free from outside pressure. They also said the donations by Smith, Gates and company — all well-known figures with connections to a major U.S. company — are a sign that political donations in state supreme court races have transitioned from a fringe practice into something accepted by the mainstream.

“I see this as a new development,” said Charles Geyh, a professor at Indiana Maurer School of Law, who studies judicial independence.

Geyh said he was disturbed to hear about the donations because historically, the groups spending money in state judicial elections have represented narrow business interests or trial lawyers; and Geyh identified Gates and company as something different — philanthropists.

Washington state is one of about 15 states that holds non-partisan elections for its judges, in which the candidates political affiliation is not identified, according to Ballotpedia, an informational site about U.S. politics. Other states hold partisan elections, where the candidates’ political party is identified.Others do not hold elections, and instead use different forms of judicial appointments.

“The narrative of who’s spending money in these races has been that it’s craven self-interested businesses trying to preserve their interests or craven self-minded trial lawyers trying to preserve an environment of high damage awards,” said Geyh. “Now, we’re looking at somebody who has a different set of priorities.”

He pointed out that if Gates was motivated to try and replace Wiggins with a judge more friendly to charter schools, it could portend a new development of wealthy philanthropists making donations in State Supreme Court races to advance their policy objectives.

Arthur Hellman, a professor at University of Pittsburgh School of Law who studies judicial ethics, said generally members of ‘the legal establishment’ will voice their opposition to large spending against an opponent.

Indeed, prominent members of Seattle’s legal community, including Davis Wright Tremaine’s John McKay — the former U.S. attorney in Seattle — have also written a letter that decried the spending on ads that target Wiggins for his decision on the child pornography case, comparing it to “the ugliest political moments” in U.S. history.

Geyh, the Indiana professor, said the problem with political donations in judicial elections is that courts work differently than the legislative branch. Unlike legislators, judges are not supposed to think about how voters will view a decision they write — they’re supposed to apply the law uniformly even in unpopular circumstances, he said.

James Sample, of Hofstra University’s Maurice A. Deane School of Law, said such donations also would require judges to subjugate themselves to fundraising in a way that could influence how they rule behind the bench.

“It’s very difficult to swing an entire state legislature, but swinging a seven-member court is possible,” said Sample. “The return on swinging one or two judicial elections can be very good.”

According to the Washington State Public Disclosure Commission, the political action committee known as Citizens for Working Courts raised $300,000 from Paul Allen’s Vulcan Company, $200,000 from Gates, $12,500 from former Microsoft CEO Steven Ballmer and $7,500 from Smith — in addition to other funds.

Smith, declined to comment through the Microsoft’s outside public relations firm.

A call to Citizens for Working Courts was returned by Michael Davis, president of Enterprise Washington, a pro-business group, who said he was coordinating the group’s spending. Davis said the Washington Supreme Court “has become an extreme, and polarizing” force and defended the spending.

“If there’s no money spent on a race, very few voters are going to know about the candidates’ positions,” Davis said.

He described the candidate the committee is supporting, David Larson, a municipal court judge, as moderate and of the right temperament. One ad they ran says he’s best known for his “professional excellence and ethical standards.”

He also said that if a judge can’t raise money, it’s an indication of a weaker candidate. As of last week, the Seattle Times reported that Wiggins had raised approximately $200,000 and that the two political action committees opposed to his re-election had raised $900,000.

Davis also said that his committee is aware of the spending by the political action committee buying ads that target Wiggins for overturning the child pornography decision. “We very much want to see Judge David Larson elected and if this helps, great,” he said.

Sample, the Hofstra professor, said one interesting question after the election is what will happen if Larson wins and a case related to charter schools comes back before the state Supreme Court, or if Wiggins wins and Microsoft has an issue before the court.

“Will Brad Smith feel he can get a fair shake in front of the Washington Supreme Court?” said Sample. “If the answer is no, then did he create the situation is a fair question.”

Write to Big Law Business at

[Image “blb newsletter” (src=]