Political use of ethics charges seem to me to be the last refuge of scoundrels. (Note to the sensitive: that is a figure of speech, I am not calling any individual a scoundrel.)
The controversy is over the need for Justice Ziegler to recuse herself in a tax case being argued today. WMC is not a party to that case, but is participating as amicus curiae ("friend of the court") and has filed a brief supporting the position taken by the Menasha Corporation which, as you might imagine given WMC's policy preferences, would, if sucessful, tend to reduce business taxes. It apparently has also contributed to the expenses of the case.
WMC made a substantial independent expenditures in support of Ziegler's candidacy. Nothing in the judicial code of ethics requires a judge to either disclose these things to litigants (they are public in any event) or to recuse herself in cases where parties or their attorneys or amici have contributed to or otherwise supported her campaign. The code does, however, remind judges to keep in mind their obligations to act in an impartial manner when soliciting (to they extent they may be involved) or accepting campaign contributions. (Of course, she did not "accept" WMC's expenditures. They were independent.)
There is some consternation on the left over her decision to stay on the case. I don't find it all that persuasive. WMC did spend a great deal of money, but it is an advocacy group. It doesn't seek special favors as much as it tries to identify candidates who it believes will support it's position. It isn't even a party to the case. It simply supports a particular outcome.
I think my colleague Janine Geske had it right when she said that, if we require justices who have received campaign contributions to recuse themselves in cases where parties have contributed, we won't have a court. I think that recusals are particularly problematic on the Supreme Court which is a collegial court of last resort resolving important questions of law. There ought to be a presumption against recusal.
The left is proposing a standard that it can't possibly mean to consistently follow. Imagine that Justice Butler is reelected this spring. Assume (as I suspect will be the case) that WEAC makes independent expenditures on his behalf or PAC contributions to his campaign. Suppose (as I also think will eventually happen) a case comes before the court challenging Wisconsin's system of school financing. WEAC will certainly support that challenge. Do they want Justice Butler to recuse himself?
But we don't have to use a hypothetical. The Journal Sentinel reports that Justice Butler says that one of the lawyers for Menasha Corporation is my former partner Maureen McGinnity who contributed to Justice Butler's campaign and sits on his finance committee. Mo is very connected and wildly energetic. I am sure that her support is very important to Justice Butler.
(He apparently was late in reporting this. I suspect that was a glitch and not intentional given that the information is so readily available to anyone.)
Should he recuse? Only he knows but the fact that he will not strikes me as quite reasonable. I don't presume that he would sell his soul for campaign support. (Incidentally, there is nothing sinister about Mo supporting Justice Butler. Given her views on these matters, it is what I would expect.)