Professor Ron Rotunda’s most recent article, Constitutionalizing Judicial Ethics: Judicial Elections after Republican Party of Minnesota v. White, Caperton, and Citizens United, can be found here, and the abstract follows:

Recent times have witnessed strong lobbying efforts to move states away from electing judges to appointing them. Opponents of judicial elections repeatedly argue that the general public does not want judges who are bought by contributors. Of course, voters do not want those judges, yet the electorate repeatedly rejects efforts to move away from an elected judiciary.

When voters do choose judges, the conventional wisdom assures us that the results will be less partisan if the judges run in nonpartisan elections – where candidates run but do not disclose their political affiliation. However, empirical evidence does not support this frequent claim. Studies repeatedly show that judges elected in partisan elections are substantially more likely to be independent than judges selected in nonpartisan elections.

People who bemoan judicial elections often attack two U.S. Supreme Court decisions that appear to politicize the judiciary. One is Republican Party v. White (2002), which recognized the free speech rights of judicial candidates. They similarly criticize Citizens United v. Federal Election Commission (2010) as a pro-business decision that recognizes first amendment rights of corporations or individuals to spend money to engage in their political speech favoring their candidates. Yet, White simply evens the playing field by overturning restrictions that were really a form of incumbent-protection legislation. So too, the controversy surrounding Citizens United is misplaced. It does not favor business at the expense of unions. Instead it gives all entities, including unions and individuals, free speech rights that the government cannot restrict, which is why the ACLU supported the position of the petitioner and opposed the Federal Election Commission’s regulation. Still others view Caperton v. A.T. Massey Coal Company, Inc. (2009) as a case that will force judges to disqualify themselves if a party is related to an independent group that had supported the judicial candidate. It is too soon to judge the effect of Caperton, but there are plenty of indications in the five-person majority that the case has little growth.

It i[s] inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in these campaigns, given that so much money rides on the outcome. As long as politicians and judges decide billion dollar issues, there will be multi-million dollar campaigns. Fortunately, the empirical evidence to support the assertion that those who pays the money gets the judge they wants is decidedly mixed.

Ronald D. Rotunda, Constitutionalizing Judicial Ethics: Judicial Elections After Republican Party of Minnesota v. White, Caperton, and Citizens United, 64 Ark. L. Rev. 1 (2011).

The Supreme Court just upheld Nevada’s Ethics in Government Law, which requires (in short) that public officials refrain from voting on matters in which they have personal interests.  In this case, a city council member voted to approve a casino despite the fact that his campaign manager and close friend had a financial interest in the casino’s development.  The Nevada Ethics Commission censured the council member, and in response, he brought a First Amendment challenge, claiming (among other things) that his vote constituted protected speech.  Rejecting the challenge, the Court concluded (again in short) that recusal rules in these circumstances do not (and did not ever) violate the First Amendment.  The Court was unanimous (as to the result, not as to the reasoning). 

The resulting opinions are relevant and indeed crucial for at least two reasons: (1) the seven-member opinion of the Court strongly validates the historical pedigree and constitutional legitimacy of American recusal laws, both legislative and judicial; and (2) both Justice Scalia (for seven justices) and Justice Kennedy (for his own pivotal self) noted that recusal rules may, quite understandably, be crafted more rigidly for the judiciary than for the legislature.

In particular, Justice Scalia acknowledged that “[t]here are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules; nevertheless, there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.”  Op. at 6 & n.3 (distinguishing White).  Justice Kennedy noted in his concurrence that “[t]he Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as [my concurrence] indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context [i.e., the legislative and perhaps regulatory context].  The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, . . . may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.”

Here is the full opinion: Nevada Commission on Ethics v. Carrigan; see also coverage at the Election Law Blog.

In a recent move that has attracted much press, the New York State Administrative Board of the Courts has proposed a rule that would require attorneys who donate $2,500 and law firms that donate $3,500 to any judge be barred from appearing before that judge for a period of two years.  This proposed rule is more flexible than a 2003 task force proposal, which recommended a five-year ban on attorneys who had donated over $500 to any judge.  That proposed rule was said to be too onerous in the many less-populated areas, which often had only one full-time judge.

To read more on this important development, click on one or more of the following outlets: Brennan Center (calling the rule “a victory for recusal reform”); NY Times (a “bold step”); and The Wall Street Journal (“It would be one of the strictest disqualification rules in the nation”); see also generally Keith Swisher, Legal Ethics and Campaign Contributions: The Professional Responsibility to Pay for Justice, 24 Georgetown J. Legal Ethics (forthcoming 2011).

An instant classic, The New Politics of Judicial Elections, 2000-2009: Decade of Change, has been released for several months now.  The study charts a decade of degeneration in judicial elections in the United States.  Quite deservingly, the study has already received significant publicity (and it even comes complete with a foreword by Justice Sandra Day O’Connor), but we would be remiss not to mention it here as well. 

Professor James Sample (Hofstra), formerly of Brennan Center fame, has just completed two fine works on Caperton and state court responses.  Here is the abstract to the first, which provides a good current-events survey of post-Caperton developments and can be found in this year’s Joint American Judicature Society-Drake Law Review Symposium:

This Article considers the significant state court reform developments in the year following the Supreme Court’s landmark decision in Caperton v. A.T. Massey Coal Co., as well as ancillary federal developments, including renewed congressional interest in judicial disqualification. Picking up on the author’s view that “paradoxically for a decision overturning a state justice’s non-recusal, the majority’s approach is a model of cooperative federalism,” the Article focuses primarily on the initial developments pertaining to money in the courts in Wisconsin, Michigan, and West Virginia in the short period since the decision. The Article notes that while recusal practices have certainly been one focal point of developments in the states, Caperton has also provided a significant boost to judicial public financing. After considering tangible developments in the three identified states, the Article briefly points to more nascent judicial independence efforts in other states, in which Caperton connections are less direct, but where the case is nonetheless figuring prominently in rejuvenated efforts to modify judicial selection practices. The Article asserts that, while not all of the post-Caperton developments have improved the judicial impartiality landscape, on balance, the decision is already producing meaningful improvements in protecting the courts from the influence of money.

James J. Sample, Court Reform Enters the Post-Caperton Era, 58 Drake L. Rev. 787 (2010).  Featured in Syracuse Law Review’s Caperton Symposium (which, by the way, contains several other good reads), Professor Sample’s second article makes the provocative claim, among others, that Caperton is a model of federalism.  James J. Sample, Caperton: Correct Today, Compelling Tomorrow, 60 Syracuse L. Rev. 293 (2010).