On Judicial Elections and Judicial Recusal

Two Pennsylvania Supreme Court justices made the case for electing judges before an audience of the American Academy of Appellate Lawyers in Philadelphia on Friday.

"Appointment is no less political. It's political at a back room level," said Justice Seamus McCaffery, a former Marine and Philadelphia police officer who was elected to the commonwealth's highest court in 2007. McCaffery minced no words as he said federal judges are often picked based on some political deal or connections involving a state's senators, or result from contributions to political candidates by a nominee's law firm over time. To anyone who thinks federal judgeships are appointed based only on merit, McCaffery said, "I've got some bridges to sell you."

Elected judges, on the other hand, are accountable and bring diversity to the bench, said McCaffery. Pointing to his own career as a police officer, McCaffery said he would never have been chosen for an appointive judgeship. "I'm electable, not appointable," he said. "It's insulting to say to the public, 'you're not smart enough to elect your judges.'"

Justice Debra Todd also said that appointed judges "are not in any way superior to elected judges." Among other benefits, she said, elections give "finality and certainty" to filling vacancies, whereas federal judgeships can go unfilled for months or years depending on political dynamics in Washington. She acknowledged that judicial elections have become more contentious and political in recent years, and that she was undrr pressure to answer questionnaires about her views on a range of issues, but she resisted. "That did lose me some votes, no doubt."

The judges were luncheon speakers at the academy's fall meeting, where other panels focused on the impact of recent Supreme Court rulings on judicial elections and recusals, most notably Caperton v. A.T. Massey Coal Co. That decision in June said campaign spending by parties in litigation before a court can in some circumstances be so large as to create a due process problem that requires an elected judge to recuse.

The ruling has had limited impact so far and has resulted in few if any recusal motions in other cases, said George Patton Jr. of Bose McKinney & Evans in D.C., who co-authored a brief in the case for the Conference of Chief Justices. To some, "it does look a lot like Bush v. Gore," said Patton, in the sense of possibly turning out to be a decision that applies only to the specific case before the Court, with little or no impact in other cases. 

Bert Brandenburg, executive director of Justice at Stake, suggested it may be too early to assess the impact of Caperton. For one thing, he said, recordkeeping on recusal motions is uneven in courts across the country. Brandenburg said that as a result of the decision and increased interest in establishing rules for judicial recusal, "we're having a different discussion than 10 yars ago." Until recently, Brandenburg explained, recusal was not viewed as a significant remedy for the influence of campaign money in judical elections.

One disincentive against filing a motion to recuse has always been a lawyer's fear of antagonizing the judge who is the target of the motion. And the Caperton ruling won't change that dynamic, several speakers indicated.

Comments

[Rich]

Philip posted: "and furthermore, win or lose, the other judges in the courthouse will quickly know you're the one making waves." If the problem is political prejudice, any judge who wants to curry favor with the judge you challenged will figure out what you were avoiding and may give it to you for your temerity to challenge the system. The right to a substitution of judge without cause (as we have in Illinois) is the only practical way around the problem and, even then, it is unwise to use it to get away from the presiding judge in a division if you regularly litigate there.

[Philip]

I have actually seen sanctions imposed upon lawyers in my state, who dared to file a motion to recuse.

Basically, there is no way that I would file such a motion, unless I knew it was a slam-dunk. I have found that elected judges tend to take such motions very personally, and furthermore, win or lose, the other judges in the courthouse will quickly know you're the one making waves. If you never were friends with the judge, and never expected to be, go right ahead and file.