Taking the Price Tag Off Courts

In an editorial published two years after the landmark Supreme Court case Caperton v. Massey, the New York Times asked whether justice can be bought. “At a time when torrents of special interest campaign spending is threatening the appearance and reality of judicial impartiality, the ruling in Caperton v. Massey drove home the need for states to adopt more rigorous rules for recusal. The message has largely gone unheeded,” wrote the Times.

In Caperton, the Court recognized that a “serious risk of actual bias” was created when a West Virginia judge cast the tie-breaking vote to throw out a multi-million dollar damages award against a coal company whose CEO had spent $3 million to elect the judge—and therefore, disqualified the judge. The Court also gave states a green light to adopt rigorous disqualification standards to address the conflicts of interest stemming from campaign cash in the courtroom.

The Brennan Center for Justice believes that strong and effective recusal rules are essential to public confidence in a fair and impartial judiciary.  Unfortunately, as the Times noted, in the two years since Caperton, state courts have largely failed to adopt reforms that respond to the threat judicial campaign spending presents to public confidence in the judiciary.

Make no mistake, the issue is critical:  judicial campaign fundraising more than doubled in the last decade, rising from $83.3 million in 1990–1999 to $206.9 million in 2000–2009.  Polls consistently demonstrate bipartisan concern for the ability of courts to dispense fair, impartial justice. In particular, polls show overwhelming public support for rules that disqualify judges from cases involving major campaign supporters.

Nine states—Arizona, California, Iowa, Michigan, Missouri, New York, Oklahoma, Utah, and Washington—have demonstrated leadership by adopting rules that, to varying degrees, address money on the judicial campaign trail. Arizona’s Supreme Court amended its judicial conduct code in 2009 to require judicial recusal if a party or lawyer, in the previous 4 years, made contributions exceeding the modest sum of $840.

Similarly, under a new provision in California’s civil procedure rules, a judge is disqualified if he or she has received contributions exceeding $1,500 from a party or lawyer in the preceding election (or in anticipation of an upcoming election).  Promising new rules that would look at the totality of circumstances surrounding a party’s (or lawer’s) campaign spending are pending in Georgia [pdf] and Tennessee.

But the majority of states have failed to take meaningful action.  Recommendations to some state supreme courts have gone unheeded, and promising legislation has been rejected elsewhere. Nevada, for example, rejected a proposal to mandate disqualification when a judge received a campaign contribution of $50,000 or more from a party appearing before her. Wisconsin not only ignored Caperton’s lessons, but actively weakened existing disqualification rules:  it diminished its recusal standards with a rule that says campaign contributions or expenditures can never be the sole basis for recusal. Other states’ disqualification rules are available on the Brennan Center website.

To help states in adopting recusal standards in line with the Caperton decision, the Brennan Center advocates four recommendations:

• First, states should not rely on a challenged judge to make the final decision on whether his or her impartiality can reasonably be questioned. If a judge denies a recusal request, there must be prompt, meaningful review of the denial.
• Second, to facilitate that review, states should require transparent decision-making, including written rulings, on recusal requests.
• Third, states should adopt rules recognizing that judges’ impartiality may reasonably be questioned, and disqualification made necessary, because of campaign spending by litigants or their attorneys.
• And finally, states should require litigants (and counsel) to disclose campaign spending related to any judge or judges hearing their case.

As special interest spending in judicial elections escalates, disqualification guidelines and related necessary disclosure rules are essential to protect fair and impartial courts. Recusal and disclosure of campaign spending do not threaten the independence of the judicial branch.  Instead, they will enhance our democracy by creating transparency and accountability and shoring up confidence in the judiciary.