As I have blogged recently, I think that much of our "outrage" over candidates' "ethical lapses" - on both the right and the left - is selective. We aren't so much concerned about ethics as we are about scoring points.
I was struck by this again when reading Linda Clifford's comments about the recent Wisconsin Supreme Court decision striking down caps on noneconomic damages in medical malpractice cases. “Three hundred and fifty thousand dollars is an insufficient amount in this day and age,”she said. “Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.”
This statement provides another teachable moment about judicial activism and restraint, but, first, I want to pause over the ethics issue. We do not know if a Justice Clifford would have recused herself from that case. Perhaps her willingness to address it suggests that she would not have. In any event, she has now publicly supported the notion that the court should have something to say about legislatively-enacted damage caps and this suggests an interesting question.
Shouldn't she remove herself from that issue?
Linda Clifford's husband is a plaintiff's side medical malpractice lawyer. Because he earns a percentage of his client's recovery, damage caps reduce his income. No - or higher caps - increase it. A lot. Judicial invalidation of those caps is likely to have a far more direct - and significant - impact on the Clifford family income than the cases for which Annette Ziegler has been (correctly) criticized.
The Judicial Code requires recusal or waiver when a judge's spouse "is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding." Although one can certainly argue that recusal on the Supreme Court level ought to be more reluctantly chosen, if we believe that judges should not rule on things in which their spouse has a substantial economic interest, shouldn't a justice whose husband is a malpractice lawyer stay away from malpractice issues? Doesn't that raise just as much concern as a judge who rules on a case that might have an indirect and attenuated impact on the value of some stock?
Perhaps it is a question on which reasonable people will differ, but don't you think that the positions that we would take on it are more likely to be driven by which candidate we prefer than the merits of the question itself?
More importantly, if those who suggest that judicial ethics is the most important - perhaps even the only - issue in the race really mean it, shouldn't they demand that the candidates address the issue? The Supreme Court decides lots of cases with a substantial impact on the economic interests of the injury bar. Wouldn't you think that "ethics voters" would want to know how a candidate whose own finances are intertwined with those interests views this potential conflict?