Thursday, July 08, 2010

More Contention on the Wisconsin Supreme Court

Today, the Court finally issued opinions on the recusal rules and the sharp divisions between the majority and minority continue. I wish that would get better. I have an article on judicial recusal coming out in the Wake Forest Law Review, so it's a subject that I have been thinking about. I have the following quick observations on the Court's decision.

First, I think that the rules on the impact of contributions and expenditures are clearly correct - as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court's decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)

Of course, this is not to say that a legal contribution or expenditure cannot be a factor - perhaps even a predominant factor - leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit it very large) independent expenditure coupled with a very significant and imminent case.

To be sure, there is much more to say about what may and may not lead to a duty to recuse - not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.

Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate - if successful - can't act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions.

In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.

Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn't seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union's membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the "something else" that may create a recusal issue.

Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn't matter that WMC or the Realtors proposed it. It it is a bad rule, it'd be just as bad if written, in the first instance, by members of the Court.


Anonymous said...

I think you miss the connection between aggressive partisanship and the ability of people to trust the courts. To say that judges can be trusted to take money from persons and then fairly evaluate claims against those persons is naïve.

“If the price of speech is that your candidate - if successful - can't act, then your speech has been burdened.” No one says that your candidate can’t act, only that YOUR candidate cannot act FOR YOU. It is elementary to justice that no one can be the judge of their own claim, and no one can rent the judge that does.

This is not a zero-sum matter. If you support or endorse a candidate, then that candidate should not be required to recuse. I agree. IF YOU CHOOSE to supplement your endorsement with money, then your candidate should have to recuse themselves from matters to which you are a party: recusing to preserve the integrity of the Court. It is a burden on speech, but the burden is a reasonable response to YOUR CHOICE, and such burdens are permissible for important or compelling reasons; preserving the integrity of the Courts qualifies here. Endorse away, not a problem. Give money and there’s an issue. One person’s right to give money (or a candidate’s right to take the money) is not more important than everyone’s interest in preserving the integrity of the courts.

“Some … have urged tough recusal standards [to] return judicial elections to quiet contests of low salience.” And some urge tough recusal standards to keep the courts as trustworthy as possible. Back in the old days, they used to say that it was not enough to avoid impropriety, it was necessary to avoid even the appearance of impropriety. I guess our ancestral wisdom is no longer consistent with the modern capitalist notion that you can’t buy justice, but you CAN rent the Courts.

sean s.

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