Swisher on Attorneys’ Judicial Campaign Contributions
Posted by kswisher on Monday, December, 20, 2010
I have posted a draft of my most recent article on SSRN. This one is on attorneys who contribute to judges’ election campaigns and then appear before those judges, and the Georgetown Journal of Legal Ethics will publish it in the winter or early spring. Judicial ethics takes a backseat (still a seat), but there should still be enough of it and judicial selection to interest readers, I presume. The abstract follows:
Lawyers as johns, and judges as prostitutes? Across the United States, attorneys (“johns,” as the analogy goes) are giving campaign money to judges (“prostitutes”) and then asking those judges for legal favors in the form of rulings for themselves and their clients. Despite its pervasiveness, this practice has been rarely mentioned, much less theorized, from the attorneys’ ethical point of view. With the surge of money into judicial elections (e.g., Citizens United v. FEC), and the Supreme Court’s renewed interest in protecting justice from the corrupting effects of campaign money (e.g., Caperton v. A.T. Massey Coal Co.), these conflicting currents and others will force the practice to grow both in its pervasiveness and in its propensity to debase our commitment to actual justice and the appearance of justice. This Article takes, in essence, the first comprehensive look at whether attorneys’ campaign contributions influence judicial behavior and our confidence in the justice system (they do), whether contributions have untoward systemic effects (again, they do), and most fundamentally, whether attorneys act ethically when they contribute to judges before whom they appear (they do not, all else being equal).