Tuesday, March 15, 2016

Judge Kloppenburg's Recusal Distinction Doesn't Work

In this morning's Journal Sentinel, Joanne Kloppenburg attempted to explain why she sat on a case arising from the John Doe investigation. One of the Doe's targets - Wisconsin Club for Growth - had spent large amounts of money criticizing her during her campaign for the Supreme Court in 2011.

Given her views on the matter of campaign support and recusal, it is astonishing that she did not step aside. She has been quite critical of Supreme Court rules that allow - but do not require - judges to sit on cases involving parties who have contributed to or spent in support of his or her campaign. She even has gone so far to suggest that those justices who were supported by Club for Growth and, like her, stayed on the case contributed to an appearance of impropriety because "people around the state are saying that the decision and several others look to them like they were foregone conclusions and they believe there was a conflict of interest."

Well, let's see. If Justice David Prosser should not sit on a case in which the Club spent money that sharply criticized Kloppenburg and benefited his campaign, why can Joanne Kloppenburg - the person who was criticized - sit on the same case? After all, politics is a zero sum game. What the Club did to benefit Prosser harmed Kloppenburg.

This is Joanne Kloppenburg's excuse: "When you someone running ads for you there is a perception of quid pro quo that doesn't exist when someone is running ads against you." (By "quid pro quo," she means the possibility that support was traded for some subsequent action.)

That won't fly. Even if you think the opposition of one group can be disentangled from the support of opposing groups, it is inconsistent with our common sense understanding of the sources of judicial bias - a concept that goes well beyond the risk of a "quid pro quo." It suggests that Judge Kloppenburg has not read or does not understand the United States Supreme Court's jurisprudence on this question. 

Judge Kloppenburg's focus on "quid pro quo" confuses the Supreme Court's campaign finance jurisprudence with its treatment of recusal. And it gets the former wrong. The Supreme Court has said that 1) only the potential for a quid pro quo arrangement justifies the restriction of campaign spending but  2) independent spending does not create the potential for a quid pro quo. Because the Club's spending in the Supreme Court race was independent (allegations in the Doe involved state legislative races), it could not have given rise to the risk of an actual or apparent quid pro quo.

But more importantly, in the recusal area, the Court's concern is not limited to the potential for a "quid pro quo." Rather, the constitutional inquiry is directed to any circumstance in which a judge's ability to be impartial might be questioned. Substantial and impactful campaign support can create a "debt of gratitude" that creates an unconstitutionally high appearance or risk of bias. But that's not the only source of bias. The Court made clear that the due process clause requires“a realistic appraisal of psychological tendencies and human weakness,” to determine whether there is “such a risk of actual bias or prejudgment" that recusal is required.

There is no reason to believe that the resentment or desire for vengeance that might be the result of spending against a judge is any less concerning than the "debt of gratitude" that might be the result of spending for that judge. You can be just as biased against those who have opposed you as you can be biased in favor of those who have supported you. In fact, I'd say that the former is more likely than the latter.

Don't believe me? Let's actually engage in a "realistic appraisal of psychological tendencies and human weaknesses." Ask yourself if you would like to appear before a judge that you had just publicly denounced as unfit to serve on the bench? No "quid pro quo" to be sure, but I'm betting that you might feel a tad uncomfortable.*

This is why lawyers will rarely ever publicly criticize judges. It is why they rarely ask judges to recuse themselves. In the sage words of The Wire's Omar Little, "if you come at the king you best not miss."

I have always argued that Judge Kloppenburg was within her rights to sit on the case. I have explained why elsewhere. I think that Supreme Court justices, in particular, should be very reluctant to recuse themselves because of independent ideological support. But Judge Kloppenburg and her supporters don't agree with me. Given her more expansive view of the duty to recuse and her desire to kick dirt at Justice Prosser for not recusing in the very same case that she sat on, I don't see how she concluded that she should not recuse. The distinction between "supporting" and "opposing" is a chimera.

* By way of disclosure, I support Justice Bradley. I recommended her to the Governor and have contributed to her campaign. This view is not one I formed in the light of this campaign. I developed it in a law review article published in 2010.

The views expressed here are my own and are not those of the Wisconsin Institute for Law & Liberty which neither supports nor opposes candidates for public office.


Anonymous said...

Let me get this straight ... Sitting Supreme Court Justices have no problem ruling on cases directly impacting the entities which raised and spent millions on their behalf but Kloppenburg was out of line here?

Even for you, Professors, this is an incredible feat of legal gymnastics!

Rick Esenberg said...

No you don't have it right. I think no one was out of line. I think she is being inconsistent however in her implicit criticism of others for doing something that is functionally equivalent to what she did.