What Caperton ought not to mean

Mayor and Attorney Paul Soglin has revised and extended his remarks on the implication of the Caperton decision. Paul had claimed that Caperton means that "the purchasers of the Ziegler and Gableman seats will watch their pawns sit on the sidelines while a new majority of three out of five Wisconsin justices determine their fate." and that, for some reason, cases that Justice Ziegler participated in will be appealed.

Although Caperton could lead to that type of mischief (and that is what it would be), it is far from clear or even probable that it will. Caperton involved a single huge donor who was party to a case before the court. That is true here only if we assume that WMC (or other conduits) are a "party" and that they have an interest in any case in which their policy interests are implicated.

But, Paul argues, we really need to know who contributes to these conduits to apply Caperton. But that's another issue, isn't it? In fact, one might just as well argue that there is no due process problem as long as the donors are anonymous. The judge has no idea where the money came from and, therefore, does not know who she is "indebted" to.

But even if we did compel disclosure of donors, when does Paul think recusal ought to be required? On the facts of Caperton, it hardly seems likely that we will be left with a new majority of five because it is improbable that any single party with a case before the court has given anywhere near the kind of money that Massey's CEO did in the Caperton case.

It seems to me that we are likely to get this new majority of five only if Caperton is interpreted to require recusal when far less money is contributed or when the case before the court is thought to raise issues that donors are interested in even if they are not directly affected. The latter argument was behind calls for Justice Ziegler to recuse herself in the sales tax case involving Menasha corporation. It wasn't that Menasha spent money on her behalf but that "business" (through WMC did) and that "business" (as evidenced by WMC's amicus brief) argued that the sales tax should not apply to custom software.

On this view, recusal would be necessary if, say Wal Mart execs gave a lot of money and the case before the court involves a challenge to a minimum mark up law that Wal Mart opposes even if it is not a party.

I think that would be a bad result and is irreconcilable with the notion of an elected judiciary. But even that view doesn't get us to a new majority of five unless we assume that only the conduits that Paul doesn't like could create an appearance of bias that requires recusal. GWC and WEAC and a variety of groups on the left contribute and bundle cash as well. If judges that benefit from money spent by "business" must recuse themselves in cases in which "business" interests are at stake, then judges who have benefited from, say, money spent by trial lawyers or labor must recuse themselves in cases in which the interests of trial lawyers and labor are at stake. We may wind up with a new majority of none.