Thursday, November 29, 2007

Be careful what you wish for

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.)


Anonymous said...

I suppose the anti-Ziegler crowd figures that, although they lost the big one, they can at least keep her out of as many important cases as possible. I think it's a rather short-sighted strategy, as your reference to Butler (and the same on JSOnline) shows.

What bugs me the most, though, is that the media is becoming a party to stirring up inaccurate claims of the Justices' partiality. I don't think it's a stretch to say that this is like the treatment of Mark Green's campaign finance "scandal." By refusing to exercise independent judgment and painting all candidates and justices as unethical, the JS and others assist moral relativism (this is more of an issue in the Green campaign than the Justices' cases), and they end up tarnishing Wisconsin institutions (as opposed to individual persons).

Anonymous said...

Yeh, the media reporting that Ziegler admitted she was wrong is really media tarnishing the institution.

They're not short-sighted, but you're blind -- and it's supposed to be justice that is blind to bias.

Anonymous said...

Rick - Who is the "left" to which you refer?

Anonymous said...

The Supreme Court should set a higher standard for apparances, not a lower one as you are suggesting.

Last week "Watchdog" posted that Ziegler recused herself from one real-estate case but not another when she did receive contributions from the realtors association and her husband is a real estate developer. It seems simple that she has a conflict with those cases as she does with the WMC.

Let's hold our courts to higher standards.

Rick Esenberg said...

It's not a matter of higher standards. We elect seven people to decide some of the most important legal issues in the state. Those decisions usually affect, not just the litigants, but all of us. Because the recusal of a justice may affect the outcome in a case, my view is that they ought not to recuse unless there cannot, in fact, be impartial or there is a conflict that is so substantial that it would undermine public confidence in the justice system for the justice to remain on the case. I do not believe that, on the Supreme Court, it is right to err on the side of recusal. There ought to be very few cases in that latter category.

I raised this issue recently with the Chief Justice (hardly a conservative)in my class at Marquette and she said that she tended to agree with me.

Now she might also argue in favor of public financing. My own view is that the problems with public financing are fatal but, as long as we don't have it, a presumption that justices ought not to sit on cases where someone who has contributed to or supported their campaign supports one side or the other would be wrong.

I do think it makes sense not to take contributions from parties with cases on the court's docket.

Anonymous said...

anon 9:29: I carefully avoided referring to Ziegler's failure to recuse herself from cases while serving as a circuit court judge. I'm talking about the new "issues" (Ziegler and Butler recusal from SC cases) reported in the last couple of days by the JS.

I think you need to separate the two -- what thoughts do you have about the more recent stories?

(Note: I don't think this is a partisan issue -- I think neither Ziegler nor Butler should recuse themselves.)

Anonymous said...

By the way, Professor Esenberg, I just noticed the JS editorial on this subject. It appears that they disagree with your thoughts about erring on the side of recusal.

I'm curious: what is the key distinction between the situations Butler and Ziegler face? The JS seems to think it's the amount of money spent on their behalf. I tend to think it's the closeness of the relationship of WMC/McGinnity to the Justices. WMC may have financed part of Menasha's case, but it isn't a party to the case (but it has filed an amicus brief). McGinnity, on the other hand, is appearing before the court as counsel for Menasha (if the JS article is accurate). Seems to me Butler's connection is closer than Ziegler's. Am I wrong? Is it really just the dollar figure that matters?

That said, I'll reiterate what I said in a prior post (lest anonymous commenters think I'm partial here): I think the Justices are right to refuse recusal, and I don't think anybody can argue with a straight face that they won't be fair and impartial.

Anonymous said...

"I do not believe that, on the Supreme Court, it is right to err on the side of recusal. There ought to be very few cases in that latter category."

The best way for this to be practical is to elect people that have the least possiblities or probabities of conflicts. That didn't happen here. Matter of fact, it appears to me and I think many others that there are very high probabilities that J. Ziegler will have more conflicts then many others would. Unfortunately, she was not forthright and misled many people about this.

Unfortunately, for everyone the best redemption to restore confidence is recusal.

Anonymous said...

I see this as one of the many, many problems we have with our campaign financing system. Public financing of ALL campaigns would ensure a government principally concerned with serving the people.

What are the fatal flaws with public financing Rick?

Anonymous said...

I've said it before Rick, and I'll say it again. I truly admire your ability to filter out the silliness of some on the left and I admire your even handedness.
What I've come to find is that, the left has no interest in fairness and give and take. Most of the lefties on local blogs are idealogues. They look for a little pimple on Miss America and criticize it, while their beastly wives/husbands or transgendered significant others disfigured wart covered faces are considered beautiful. They are believe anything that does not dove tail with their thought process needs to be silenced.

Anonymous said...

I think we have reached a point in many areas where we are unable to distinguish between big and little--and I'm not just talking about this case. As a result, some little infractions are blown way out of proportion and some big infractions are let go.

The justices have disclosed their connection with the parties. They have determined that they can, and in effect, promised that they will decide the cases impartially and in accordance with the law they they see it. I don't know what more we can ask. To ask for justices with no possible conflicts is asking for someone who never did anything.

Dad29 said...

Actually, 3rdway, the problem is that far too many people think that "other people" are political whores. In some cases, it's true; in the vast majority, it's not.

It's a case of projection, not of reality-based reasoning.

Seeing the entire world in terms of politics is a ticket to the loony bin.

Ask my wife about me...

Anonymous said...

I am pretty sure that the whores you speak of Daddio are peppered throughout our political system. They will always be there as long as they are placed in power by special interest groups. The only way I see of shutting down the whore houses is to cut off their funding.

I ask again how could publicly funded campaigning be any worse than what we have now?

Anonymous said...

Purrfect, I agree -- there is need to distinguish between big ($2 million to Ziegler) and little ($500 to Butler).

Clearly, that vast distinction means that they deserve different treatment -- not what they got in the same placement on the front page of the paper, not what they get in the blogs.

If only one got chump change, with what campaigns cost these days, those who try to convince you that the donations deserve the same treatment must think you're the chump.

Anonymous said...

3rd Way,

I'm with you on the problem with lobbyists, special interest groups. If I were king, they would be done away with (or at least the monetary aspect of them) and legislators would have to make decisions by balancing what's good for people, business, the country, etc., on the merits of the issue and nothing else.

Unfortunately I'm not king. Fortunately, I'm not a lawyer either, but I suspect campaigns funded only by public funds would not pass constitutional muster. Because of our freedom of speech thing, we can't limit what special interest groups say by producing ads, etc. By extension, I don't think we can prevent them from supporting politicians financially. Not without a constitutional amendment anyway, and the pols would never let that happen.

Anonymous said...

Otto - Our broadcast system was created with public money to serve the common good and to foster private enterprise. I don't see any freedom of speech issues with restricting political advertising on public broadcasts. It is advertising. Are no-call lists violations of free speech rights? We have plenty of restrictions regarding content already. If people want to hear political rhetoric they can tune into Rush, Keith O., Bill O. or any of the other talking heads. Why should the people with the most funding be the ones most able to get their points across? If you have enough support for your campaign you should be entitled to, and limited to, a set amount of free airtime.

This would ensure that the politicians with the positions of broadest appeal are elected.

From what I have heard the Brazilians have seemed to have figured this out pretty well. Campaign finance reform, like health care reform seems like an issue all parties should be interested in solving.

People blow this stuff off and say it will never be possible. I realize it is damn near impossible, but why? This is our government. Those whores are supposed to be working for us. If partisan hacks weren't controlling the debate we would be able to join together and take our government back from special interest groups.

Dad29 said...

Our broadcast system was created with public money to serve the common good and to foster private enterprise.

So Sarnoff's money, and Paley's money--that was, what, bupkus?

The problem, my friend, is that we elect (some) cheeses and louts to office. The stupid ones I can live with.

It's the ones who fail to recall "the common good" which are bothersome. Even Ziegler's stupidities did not affect the 'common good.'

And when you demonstrate that Brazil's freedom of speech is equivalent to that in the US, and was similarly un-impinged by public-financed elections, then you may have an interesting case.