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Protecting Due Process Amidst Judicial Fundraising

[ 37 ] February 17, 2011 |

This seems like an appropriate solution to Supreme Court decisions preventing restrictions on judicial fundraising:

New York’s top court officials will bar the state’s hundreds of elected judges from hearing cases involving lawyers and others who make significant contributions to their campaigns, a move that will change the political culture of courts and transform judicial elections by removing an important incentive lawyers have for contributing.

The four dissenters in the recent Caperton case — the Court’s four most conservative members, of course, saw no due process problems with a judge hearing a case when he had received more than $3 million in campaign contributions from one of the parties — made a big deal about how the rules the opinion established were insufficiently clear. But if we need a bright-line rule, what’s wrong with “if a judge has received campaign contributions from a party, she may not hear the case?” People will still have the 1st Amendment right to make campaign contributions, and there’s no 1st Amendment right to distort the judicial process for your own direct personal gain.

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  • BJN

    How much do you have to contribute to get excluded? Seems like it would be in a lawyer’s interest to donate $100 to every judge known, say, for taking a hard line on corporations, meaning a client knows that by hiring them they will get a pro-corporate judge. Anything that conceivably lets parties select their judge is ripe for abuse.

    • Glenn

      I believe the exclusion kicks in at $2500 over any 2-year period.

    • Glenn

      But you do raise a clever point. Will be interesting to see how this plays out.

    • Flowers

      The judge doesn’t have to take the donation just because it’s offered.

      Also, I’d love to be the person who starts the shit-storm when far-right organizations start donating to judges who are far left. Conservatives would never stand for it. Let the letter-writing campaign begin!

      • Warren Terra

        Sure they do. If they’re accepting some other people’s donations but refusing mine, I’ve got evidence they don’t like me, and can demand their recusal. If they refuse all contributions, that’s different, but presumably that will be rare. And I get to keep my contribution!

      • In theory the donation is anonymous– the checks get written to the Committee to Elect Some Guy Judge, or the Committee to ReElect Cross-Endorsed Judge X. It’s a shakedown, and the money gets spread around to other candidates running for non-judicial offices on that party’s line.

        That’s actually another problem with this system, since it means that the anonymity wall will inevitably be further broken down.

    • $2,500 for an individual, $3,500 for a firm– or a corporation, although my sense is that corporate contributions are comparatively rare in the context of New York judicial elections.

      There are problems with this approach. First, I don’t think it goes far enough. Frankly, if you wrote a check to a judicial campaign that judge should be obliged to recuse herself regardless of the amount of the donation. If all we are doing is haggling over the price we still have an issue. Second, this means that large firms are going to have a great deal of control over who hears their client’s cases. If I’ve got a hundred lawyers in my office and a judge who is known to favor plaintiffs or whatever) that judge is going to be the recipient of quite a bit of our campaign largesse.

      In theory judges don’t know who writes the checks– it is handled by a committee of “friends”. Maybe that’s true, although usually the contributions take the form of tickets to an event where the judge is in attendance. The money is typically spent on donations to the campaigns of others who are running for state or local offices, and it is a pretty safe bet that the local party chairperson knows who paid what, so even if it isn’t a bribe to a judge it it still counted on one’s tab when it is time to dole out patronage assignments.

  • rea

    Wow, I can think of any number of judges whose campaigns I’d contribute to, if it meant they wouldn’t hear any of my cases.

    • Anderson

      Bingo. The people yammering loudest about this seem to be those who don’t practice law.

      The Caperton case was sufficiently egregious that recusal was necessary, but you can’t have a rule that lets lawyers game the system like that.

      Besides such tactical gifts, the other likelihood in NY will be that attorneys form small groups that give to judges.

  • Rob

    The Wisconsin State Supreme court of course has said its wrong for a judge to recuse themselves in cases they have financial incentives. By recusing themselves it would mean they wouldn’t look impartial and that would be wrong.

    • efgoldman

      What happened to Wisconsin? I used to think of it as Massachusetts Midwest.

      • BigHank53

        Ann Althouse trains their lawyers, remember?

        • j_h_r

          FTW

      • witless chum

        I’d guess that like Michigan, becoming more suburban makes them more conservative. Plus, the old, rural New Deal loving Democrats have been eroded by politicized right-wing religion (both the Jesus kind and the NRA kind) just like everywhere else.

  • Warren Terra

    I was going to make the same comment as BJN and Rea – if I were a notorious defendant, I’d make sure to give nominal sums to every judge candidate who wasn’t in my pocket, to disqualify them from judging me. This would leave my hypothetical notorious defendant in a quandary about how to aid their judicial allies without recusing them, but if said defendant is wealthy and Macchiavellian enough I suspect some method could be found; the Chamber Of Commerce comes to mind, as it has shown it’s willing to do independent expenditures to sway elections towards the right wing, and unwilling to disclose its sources of money.

    • chris

      And the Chamber itself is unlikely to be a party to many suits, so it’s an ideal vehicle for laundering campaign contributions to avoid the kind of direct link that would force recusal.

      Really, any think-tank-like organization of the proper ideological bent could serve that role.

  • mpowell

    The better solution is publicly funded campaigns for elected officials. Make accepting public funds force officials to forgo private funding and make it generous enough that they can’t afford to refuse. It’s not ideal, but until we fix SCOTUS, it’s just the price we need to pay to clean up our politics.

  • DrDick

    Personally, I think this case illustrates in part why electing judges is problematic. In most ways, I think that executive appointment with legislative confirmation is probably a better track, though it also has manifest problems (as we can see in the current SCOTUS).

    • Anderson

      Yes. Appointment isn’t great, but ANYTHING is better than electing judges. I would rather have practicing lawyers randomly chosen to judge cases than have elected judges.

    • Warren Terra

      Electing judges also has the problem that very few voters know who these people are – and yet they still vote. Low-information voting is a problem, but especially without partisan labels to clue the voter in. Sure, some will just vote for the incumbent; zone even plan ahead and study the candidates. But a lot of voters will be surprised these candidates exist, and vote their biases: gender, maybe, or familiarity of surname.

      • DrDick

        Here in Montana, it can be difficult even to get any concrete information on judges, including supreme court justices. I ran into this problem in regard to the elections this last year.

      • Joe

        NY judicial candidates have partisan labels.

    • BJN

      Exactly. Judges are supposed to be impartial. Electoral politics only works for people who are partial. Doesn’t add up.

      • DrDick

        This is compounded here in Montana by relatively short terms.

    • Scott Lemieux

      Personally, I think this case illustrates in part why electing judges is problematic.

      We have a winner! And electing judges in combination with libertarian campaign finance doctrine is even worse.

  • McKingford

    there’s no 1st Amendment right to distort the judicial process for your own direct personal gain.

    Well, not yet…if only because such a principle has yet to reach the court that brought us Citizens United…

  • David Nieporent

    The four dissenters in the recent Caperton case — the Court’s four most conservative members, of course, saw no due process problems with a judge hearing a case when he had received more than $3 million in campaign contributions from one of the parties

    No, he hadn’t. He had received the statutory maximum of $1,000.

    • Brad P.

      Can’t wait to see this fact war.

      Who, oh who, is telling the truth?

      • Glenn

        From Caperton

        In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to “And For The Sake Of The Kids,” a political organization formed under 26 U. S. C. §527. The §527 organization opposed McGraw and supported Benjamin. Blankenship’s donations accounted for more than two-thirds of the total funds it raised. Id., at 150a. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures—for direct mailings and letters soliciting donations as well as television and newspaper advertisements—“‘to support . . . Brent Benjamin.’”
        To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee.

      • Holden Pattern

        And the answer is “Nieporent”, for a very very narrow and pedantic value of “truth”.

        • David M. Nieporent

          Pedantic? For at least 35 years, the Supreme Court has drawn a legal distinction between donations and independent expenditures. People like Scott want to elide that distinction to distort the facts in favor of their position.

          • DocAmazing

            That pedantic distinction.

          • (the other) Davis

            Have you read Buckley v. Valeo and its progeny? The Supreme Court’s justification for applying strict scrutiny to expenditure limitations, but something more like intermediate scrutiny to donation limitations, is all but incoherent. I say this as someone who had to argue a moot court issue where that distinction was key, and thus had to employ the Court’s reasoning — there is no rational underlying principle (there’s some verbiage about expenditure restrictions regulating the “core speech act” and donations only doing so peripherally, but that’s a conclusion and not a justification). This is just another one of those areas where the Court determines the outcome by selecting the level of scrutiny that gives the desired outcome.

  • wengler

    I think judge robots would be impartial.

    What is that computer that just won Jeopardy doing?

    • elm

      Watson would only work if you didn’t mind it occassionally applying Canadian law and claiming it was enforceable in the U.S.

      • Anderson

        Shit, we have that now. Bring on our judicial robot overlords!

  • How quickly can a case challenging this be brought to the Supreme Court so it can be over ruled by the 5 Immoderates ? Or would it be easier to have the Feds pass a law outlawing it ?