Friday, December 14, 2007

Contributions and Recusals

My sometimes Backstory colleague Jim Rowen begs to differ with my thoughts on the recusal of Supreme Court justices and what can be accomplished by the public financing of Supreme Court elections.

He bases the first on my comments in an interview by Patrick Marley that were paraphrased in an article in Thursday's paper on the Wisconsin Supreme Court's deadlocked decision in a case involving the ability of a town to declare a development moratorium.

The paraphrase was reasonable. My point is that recusal by a justice on a collegial law-developing court ought to be undertaken with great care. Justices are elected to decide and, unlike in a lower court, no one will replace a justice who steps aside.

Jim thinks that Justice Ziegler should have stepped aside anyway but that's a subject that I did not comment upon. In fact, I made it clear to the reporter (Patrick Marley) that I had no opinion on her decision to recuse herself in this case. I said that's a call for her to make. Marley was I thought appropriately careful not to imply that I was saying anything about Justice Ziegler's decision in that case.

I disagree with Jim, however, to the extent that his comments can be read to meant that she ought to recuse herself because her political opponent have made her "radioactive" or that she ought to do something other than what she would otherwise think is right because of her pending disciplinary matter. The former, in particular, would make justices hostage to public pressure.

Jim is in favor of public financing because he wants to wring money out of judicial elections. But, as I pointed out in the post to which he is referring, it is unlikely that any public financing bill that is constitutional can do that.