Lawyers on the panel “Justice for Sale?: Contributions to Judicial Elections in the Wake of the Supreme Court’s Decision in Caperton v. Massey” agreed that it’s time for more states to craft rules determining when judicial recusal is appropriate and to consider restrictions on political contributions.
Attorney Meryl Chertoff, director of Georgetown University Law Center’s Sandra Day O’Connor Project on the State of the Judiciary (and, yes, wife of former Homeland Security Secretary Michael Chertoff), suggested that how judges are elected should also be part of the discussion. Although there has been much criticism of the whole process of electing judges, Chertoff did say that it works well in some states.
“This is a rule-of-law case,” she said. “At the same time we’re exporting the rule of law all over the world, we left the back gate open.”
With respect to the parameters defining a “significant” political contribution, $3 million may be appropriate in one state while $30,000 is appropriate in another, Chertoff said. In fact, Montana is considering a $250 limit, while Georgia is reviewing $5,000, said Keith Fisher, a former law professor who authored two amicus briefs on behalf of the ABA in the Caperton case.
“We’re going to see a lot of experimentation,” Fisher said.
Still, the panelists noted that ABA rules of conduct for judges on the recusal issue, which were adopted by the association in 1999 and which left blank some dollar amounts so states could determine their own, have largely been ignored with few states adopting the rules. Fisher was at a loss to explain why.
“This has sparked so much public debate that I think the states realize they need to revisit this,” Fisher said after the discussion.
If states are waiting for a further cue from the ABA, it’s coming. Attorney Bill Weisenberg, who moderated the panel and leads the association’s Standing Committee on Judicial Independence, said the committee will solicit input from state bar associations, ABA affiliates and others starting next month over a 30-day period and develop a proposal for review at a February meeting of the ABA’s House of Delegates.
In the June 8 Caperton decision, the Supreme Court ruled in a 5-4 split that Justice Brent Benjamin of the West Virginia Supreme Court of Appeals should have recused himself from a case in which the chief executive of the company being sued had spent more than $3 million to support Benjamin’s election to the court.
“The states need guidelines and this is a teachable moment,” Weisenberg said after the discussion.