Judicial recusal again

So we are now supposed to be interested in judicial recusal again. The idea is that, if interested parties - even independent organizations - spend a lot of money in a judicial election, then a justice who benefited from that spending ought to step aside.

Back when I worked as a full time legal academic and did such things, I wrote about judicial recusal. While the Journal Sentinel has turned to academic experts on the subject (generally representing a spectrum of opinion from A to A flat), the analysis that they offer is, in this context, insufficiently developed.

I wrote on the subject recently here. Let me revise and extend my remarks.

The idea between recusal based on campaign support is that it might cause a judge to improperly prefer the interests of a party. A judge in that sense might depart from the need to be impartial toward all parties; to apply the law - as she sees it - to all parties equally.

This was the reasoning behind the United States Supreme court's decision in Caperton v. A.T. Massey Coal Co. In that case, the CEO of Massey spent millions of dollars in support of a candidate for the West Virginia Supreme Court. At the time, Massey was in the process of appealing a $ 50 million verdict against it. When the beneficiary of this campaign support was elected and refused to recuse himself in the appeal, the U.S. Supreme Court found that the Caperton plaintiffs (who had won the large verdict) were denied their due process rights.

Now, there are problems with Caperton, but, even if we accept its reasoning, there are serious difficulties when one attempts to apply it to instances when campaign support has come from an ideological advocacy group such as Wisconsin Club for Growth or the Greater Wisconsin Committee. (In Caperton, an organization was used to spend most of the campaign money, but it was largely funded by Massey's CEO.)

These organizations really have no independent existence other than as an association of like-minded persons who want to speak in an election. Their are driven by ideological and policy preferences and their identity shifts from election to election. The organization is a vehicle for their association, but, as an institution, adds little to it. They might unite under the banner of the Club for Growth today and form a new organization tomorrow.

Significantly, these groups tend to support candidates who already share the perspective that their donors support. The Greater Wisconsin Committee looks for liberal candidates. It does not support candidates who do not share their outlook in the hope that he or she will "come around" after the election. Advocacy groups don't seek to influence candidates, as much as they seek to influence the electorate to support candidates who already have the views that the group seeks to advance.

So to be "biased" in favor of Club for Growth or the Greater Wisconsin Committee is to be biased in favor of the ideology they promote. It is, moreover, likely a "bias" that the candidate already has. It constitutes his or her deeply held convictions about the way in which the world works.

That's not impermissible bias. It does not raise due process concerns. In a case called White v. Republican Party, a majority of the United States Supreme Court held that bias in favor of a philosophical perspective - to have a position on disputed legal and political issues - is not bias at all.

Now, to be sure, there are times when a judge needs to put aside those preferences because the law requires that they be ignored. For example, I oppose the death penalty, but, by the traditional tools of legal analysis, I can't say it is unconstitutional. I might think that a state income tax is poor public policy, but, were I a judge, I'd certainly have to enforce it. (It is not, however, always the case that a judge's political or philosophical perspective will have no role in deciding a case; judges routinely rely on their philosophical and political beliefs to resolve uncertain questions of law. That's why we care so much about who is on the Supreme Court.)

But the fact that one has been supported by like-minded individuals does not make it appreciably less likely that a judge will be able to set aside biases that do not arise from that support, but from his or her own ideology.

Now, to be sure, a few caveats in order. Advocacy groups may be more ideological than candidates and drive them to more extreme positions than they otherwise would take. They may dissuade a judge from expressing a sincerely felt position that is more "nuanced" or idiosyncratic than his or her ideological cohorts would prefer. But it's not clear to me that monetary support makes this significantly more problematic than does the bare fact of judicial elections.

Of course, some donors support ideological groups for private purposes and, while their donors may not be disclosed, a judicial candidate will come to know who they are. But sorting that out - should a judge who accepts support from the plaintiffs' bar recuse herself in cases raising important questions of tort law - would seem to rest uneasily with the notion that we want the public, with all its conflicting interests, to elect judges.

Some people reject the premise of White v. Republican Party. They want judges to be selected without ideology. This is so, even though I am aware of no serious student of the law who does not believe that ideology matters in deciding certain cases in which the law is unclear. But this is really an argument against judicial elections more than it is an argument against recusal.

Here's why. Judicial elections - particularly for law developing courts like our state supreme court - will almost always involve contests of competing ideologies. If the support of one "side" or the other is a basis for recusal, there is always be  basis for recusal in cases with political or ideological import.

In fact, the problem runs even deeper than is commonly supposed. The most recent Journal Sentinel article draws a distinction between campaigns in which a great deal of money has been spent and those in which it has not - generally because the latter races were not competitive.

On one level, that makes sense. But, if we are really worried about the impact of ideology and the groups that advance ideologies in judicial elections, it stops short of efficacy - at least in the context of a multi-member court. Even if a justice is not running, he or she may care deeply about the campaigns involving other members of the Court. Those races can affect whether a justice will have a like-minded majority in the ideologically driven cases about which the justices may care the most.

It is well known within the legal community that members of the state supreme court recruit or support (generally silently) candidates to oppose their colleagues. (In fact, a recent proposal by the state bar association to limit justices to one sixteen year term is, in part, driven by the potentially corrosive impact of justices being involved in their colleagues' re-election campaigns.) It is also the case that a justice who is contemplating re-election will be aware that certain groups will spend for or against them when the time comes. Thus, if we think ideological support is a problem, combating it will require more than simply seeking the recusal of justices who have had contested races in which these advocacy groups have been players.

It is no answer to this problem to say that limiting recusal to candidates who have enjoyed the support or weathered the opposition of these groups is better than nothing. Stopping halfway can affect the ideological composition of the court and frustrate the political choices that the public, in electing these judges, has made.

So my view has been that an aggressive view of recusal - requiring it in the wake of lawful campaign support particularly from advocacy groups - is at odds with our decision to elect judges and, quite frankly, is a vehicle for mischief - of attempts to change the composition of a court that the public has elected - than it is a way to ensure impartiality.

Cross posted at Purple Wisconsin.