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Requiring Judicial Recusal from Presiding Over Cases Involving Election
The Supreme Court 5-4 ruling (Caperton v. A.T. Massey Coal) that judges must recuse themselves from hearing cases involving litigants who have contributed large sums to their elections is particularly interesting in light of the controversy surrounding President Obama’s and Judge Sotomayor’s comments about having empathy for economically and socially disadvantaged people affected by judicial rulings. Clearly, economically disadvantaged people are not normally able to have contributed significant campaign contributions to any elected judge.
Many, such as Senator Jeff Sessions (R – Alabama), minority
chair of the Senate Judiciary Committee, have said that the law is the law and
should apply equally to everyone with empathy having no proper place in
deciding cases. The law is all that
should decide cases. That would be reasonable:
In Caperton v. A.T. Massey Coal, the Supreme Court for the first time in history decided that large campaign contributions, though previously allowed under an interpretation of the first amendment’s guarantee of freedom of speech, violated the due process clause of the Constitution. Previously judges were to recuse themselves from cases involving conflicts of interest, such as owning stock in the company of one of the litigants, having a relative who worked for the litigant, having worked recently for a law firm that worked for one of the litigants (particularly on matters involving the case before the court), having close personal ties to one of the litigants, etc. but campaign contributions were not grounds requiring recusal.
The minority opinion was that this ruling was too vague to be of legal value and would require answering many questions about its application in describing which kinds of cases counted and which did not. In a separate minority opinion Justice Scalia argued it would open the courts to a flood of groundless litigation. These rationales are themselves interesting and I will address them also.
What I find relevant to the Sotomayor controversy is that it is incomprehensible to me that anyone with any sensitivity to citizens who do not, and who particularly do not have the means to, make large contributions to a judge’s election could think due process in terms of fairness and the appearance of fairness was not jeopardized when such a citizen was opposed in trial by an individual or organization that had contributed large sums of money to the judge’s election. The fact that a benefit or attempted benefit for a judge occurred prior to his ruling rather than after it (as would be the case if a judge or one of the judge’s relatives or good friends had a financial stake in the ruling) seems to be a distinction without a significant difference – and is like saying that it would be okay to bribe a judge presiding in a case as long as you pay him/her before s/he renders a decision rather than after, and as long as there were no actually stated quid pro quo. A judge’s being “beholden” or even grateful to a contributor in any way, shape, or form seems likely to at the very least dispose the judge to favor the litigant who made the contribution. A trial in which a judge rules on behalf of someone who has bestowed an important favor is one that at best is tainted and reasonably suspicious.
While it is theoretically possible that a judge can rule fairly and without bias on the merits of a case where one, and only one, of the litigants has made a substantial contribution to his/her election, and while theoretically there may be a way of discerning that, that a judge will clearly rule without favoritism when siding with the litigant who made the contribution, is believed at most only by the wealthy who make such contributions (if them) or judges who have benefited, or stand to benefit from them in the future. In most cases it will be difficult to tell whether the decision was prejudiced or not, and so it is better not to have the question arise in the first place. Judges should recuse themselves in cases where one of the litigants, and only one of the litigants, gave substantial election help. In cases where both litigants contributed somewhat equally toward the judge’s election, judges should not have to recuse themselves because any bias due to such contributions cancels itself out.
Attorneys probably know or suspect there is likely judicial bias favoring contributors to judges’ election campaigns. It is more than likely that attorneys who will have to try cases before the judge who is elected at least sometimes support or make contribution to judges’ campaigns as a self-defensive cost of doing business, rather than because they have any particular regard for the candidate’s judicial philosophy or intellect. They may not so much be trying to curry favor as they are trying to avoid disfavor. Often, though not always, individuals who stand to benefit from a judge’s election make contributions to all the viable candidates in order to cover or hedge their bets. I suspect that a litigant who made a substantial campaign contribution only to the opponent of a judge who was elected and is now trying the case, would not be so disposed to see his/her trial as being fair as s/he is when the backed candidate won the election. It is simply difficult to imagine how a trial can be fair when one and only one litigant in it has done a substantial favor for the presiding judge; and it is difficult to imagine how any judge cannot see that it is or seriously appears to be, unfair, even if s/he believes s/he can be impartial. One expects judges to have, if not empathy for the litigant who cannot make such a contribution, at least the sensitivity to see the problem.
As to Chief Justice Roberts’ dissenting point that “this ruling was too vague to be of legal value and would require answering many questions about its application in describing which kinds of cases counted and which did not”, it is not atypical for the Court to make decisions that do not answer all the questions involving a law. They do so whenever they make very narrow rulings; i.e., rulings on narrow points or matters of law.
Furthermore, the Constitution itself has proved over the centuries to be “vague” enough to require “answering many questions about its application”, often by the Supreme Court itself. If the law were always perfectly clear and consistent, courts would only be necessary to determine matters of fact, not matters of law.
And insofar as law concerns justice and not just rules for the sake of rules, as the Preamble to the Constitution expresses it, “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” there have to be judgments rendered that bring formal rules into compliance with serving those general and imprecise, but nevertheless intelligible, purpose, insofar as law, precedent, and reasonable interpretation allow. This is particularly true because the wording of rules is notorious for not embodying their full intent (correctly), and because even the most carefully worded laws often leave unintended and unanticipated loopholes.
So the fact that courts will have to refine this ruling is not grounds for not making it.
As to Justice Scalia’s contention that the ruling will bring a flood of groundless litigation, our laws do that anyway. That is a by-product of our legal system. But as court’s refine their opinions in ensuing precedents, such litigation is increasingly decided in lower courts.
And, it is not clear how ruling that elected judges do not need to recuse themselves from deciding cases where one of the litigants made substantial campaign contributions, prevents other ways of bringing lawsuits which try to eliminate or discourage judicial favoritism. Whether Justice Scalia sees the problem or not, or simply thinks it is a groundless issue with no possibly meritorious argument, the problem still exists and needs to be addressed in some way. If Justice Scalia is correct that it is an issue for legislation, not judicial decisions, any legislation that tackles the problem will still likely end up in court, and Justice Scalia will probably consider some of those cases groundless as well, whether they are or not, and whether his colleagues on the Court agree or not. There is, after all, a difference between a case’s being groundless and its simply not having sufficient merit, or perceived merit, to win a favorable ruling. If merely losing were the criteria for being groundless, every case ever brought to court which had a losing side would be groundless and should not have taken up Justice Scalia’s time.
 Some of this controversy could be semantic. If empathizing with a litigant is taken to mean favoring or being on the side of the litigant out of feelings of shared circumstances, it would be inappropriate for a judge. But if empathy means being sensitive enough to understand each litigant’s plight and circumstances, which is the meaning I am using here, then the view expressed in this paper presumes that such sensitivity actually is preferable for judges to have and should, if anything, be required or expected whenever feasible, not forbidden.
 In sports and games, for example, “the rules are the rules”, and they apply to everyone who plays them – which is all that is required to make them fair in that sense of fairness. But games are voluntary, so it does not matter that a rule might give strange or unfair results in some other way. If in basketball, a team were able to find a coordinated 10 foot tall player who could just simply stand near the goal and receive high lobs that s/he converts to easy dunk shots, helping his/her team win every game, that would not be unjust in any way in the sport, though it might make the game boring, and probably would result in an off-season rule change that prevented such height from being an overwhelming advantage that drives away fans from opposing team. Even in sports there is some extrinsic sense of “justice” apart from merely “universally even application”, but intrinsically in sports “rules are rules” and as long as they apply equally to everyone, nothing else is involved in determining their fairness, even if they temporarily give one team or player a decided advantage over others. Real life should not operate that way. For example, consider a “poll tax” requiring a fee be paid by voters. That can be fair in the sense of being universally applied, but it is unfair in that it effectively disenfranchises voters who cannot afford to pay it. Courts should not be totally blind to the latter aspect – the de facto results of a given law – even if in some kinds of laws de facto results should not be determining, as perhaps in business license fees.
 That campaign contributions are considered tantamount to free speech is clearly a “stretch” in ordinary language terms of what constitutes “speech”. Perhaps it is the judicial understanding of “money talks”. If a person with a significant sum of money at his/her command wishes to further a candidate’s election chances because s/he agrees with the candidate’s positions, then there should be some truly anonymous mechanism to promote that position with monetary or other contributions. But insofar as a judge knows where such contributions came from, there is no way to distinguish and disentangle “freedom of speech” from “currying favor”.
 While normally when a litigant has a special relationship with a judge, the relationship is considered potentially unfairly beneficial for the litigant, the opposite possibility is worth considering. Suppose, for example, in Cheney v. USDC for District of Columbia, that on the duck hunting trip in question shared by Justice Scalia and Vice President Cheney, Vice President Cheney had accidentally shot Justice Scalia in the face, as he did later a different hunting companion on a different trip. Would not the attorneys for Mr. Cheney have sought for Justice Scalia to recuse himself.