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Archive for the ‘Judicial Selection’ Category

A Huge Loss for Fair Courts

Posted by judicialethicsforum on Sunday, October, 5, 2014

After 100-plus years, the American Judicature Society sadly will be closing its doors.  As the AJS President said in a press release:

A fair and impartial justice system is the foundation of American liberty. The American Judicature Society has fought to improve and preserve the fairness, impartiality, and effectiveness of our justice system for 101 years as a member-based entity. However, in the last several years, the membership model has become more challenging for many nonprofit organizations around the country, including AJS. At the same time, new nonprofit entities with organizational and financial structures more suited to the times have joined AJS in the fight. The American Judicature Society’s Board of Directors decided that rather than operate on a limited scale, and rather than duplicate the excellent work of other similar entities, AJS should find new homes for its core functions. To this end, AJS and the National Center for State Courts (NCSC) have entered into a Memorandum of Understanding that transfers AJS’s Center for Judicial Ethics (the CJE) to NCSC and ensures that the CJE will continue its very important work. AJS is also in the process of finding new homes for Judicature and AJS’s internet accessible resource known as Judicial Selection in the States.

Even after the American Judicature Society closes its doors, its legacy will live on as long as Americans recognize and support a fair and impartial justice system as essential to our freedom.

See also the National Center for State Court’s Press Release (noting the fortunate fact that AJS’s Center for Judicial Ethics will live on at the NCSC).

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Posted in Judicial Ethics Generally, Judicial Selection | Leave a Comment »

NBC’s The West Wing Campaigns for a Judicial Candidate

Posted by judicialethicsforum on Wednesday, September, 26, 2012

In one of the most noteworthy and actually entertaining judicial campaign ads, the cast of The West Wing reunited to support Bridget Mary McCormack for the Michigan Supreme Court.  The ad also offers an important announcement that transcends McCormack’s campaign: because voters frequently and reflexively vote straight “R” or “D” (which is one of the reasons why the concept of popular judicial election can be problematic), those voters are, perhaps inadvertently, not voting at all on the non-partisan portion of their ballots.   Many states, including Michigan, use non-partisan judicial elections.  Here is the ad:

Posted in Judicial Campaigns, Judicial Selection | 1 Comment »

Judicial Selection Updates

Posted by judicialethicsforum on Friday, May, 11, 2012

The great Malia Reddick, now the Director of the Quality Judges Initiative at the IAALS at Denver University, pulls together an interesting running collection of judicial selection news across the states.   Topics include merit selection bills, retention election battles, campaign spending, and many more. 

For the collection, click here.  To sign up for email updates, click here (and choose Selection Snapshots Newsletter). 

Posted in Judicial Selection | 1 Comment »

New Scholarship: Pozen on Judicial Elections and Popular Constitutionalism

Posted by kswisher on Monday, December, 20, 2010

David Pozen has just married the practice of judicial elections to the popular theory of popular constitutionalism.  My first thought: If he is right that judicial elections are really the best “vehicle for achieving popular constitutionalism [by being] genuinely empowering without being anarchic, accessible to the masses yet mediated by professionals, [and] transformative yet realistic,” then I must not be a popular constitutionalist.  But his balanced and insightful analysis convinced me to read on.  Here is the abstract:

One of the most important recent developments in American legal theory is the burgeoning interest in “popular constitutionalism.” One of the most important features of the American legal system is the selection of state judges—judges who resolve thousands of state and federal constitutional questions each year—by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states’ experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.

David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047 (2010), a link to which can also be found in Articles.

Posted in Judicial Campaigns, Judicial Ethics Generally, Judicial Selection | 1 Comment »

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).

 The article can be downloaded for free at this link, which can also be found in Articles

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally, Judicial Selection | Leave a Comment »

Judicial Ethics in Understanding Lawyers’ Ethics

Posted by monroefreedman on Monday, November, 29, 2010

The new (4th) edition of Understanding Lawyers’ Ethics has a 40-page chapter on Judges’ Ethics.  Sections include (among others):

THE PRACTICAL ADVANTAGES OF AN APPEARANCES RULE

SOME IMPLIED EXCEPTIONS TO DISQUALIFICATION
[1] The Judicial Source Exception
[2] Disqualification Based on a Judge’s Prior Commitment to Issues or Causes
[3] Disqualification Based on the Judge’s Religion, Race, or Gender
[4] Disqualification Based on an Implied Bias for or Against a Class of Litigants
[5] The Rule of Necessity
[6] Friendships Between Judges and Lawyers Appearing Before Them

ELECTED JUDGES AND DENIAL OF DUE PROCESS

JUSTICE SCALIA’S DENIAL OF RECUSAL IN THE CHENEY
CASE

JUSTICE SCALIA’S FAILURE TO RECUSE HIMSELF IN
BUSH v. GORE

Posted in Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally, Judicial Selection | Leave a Comment »

New Scholarship: Swisher on Tough-on-Crime Judges

Posted by judicialethicsforum on Monday, November, 30, 2009

Prof. Keith Swisher has posted a draft of his forthcoming article on pro-prosecution judges, judicial elections, and disqualification.  Here is the abstract:

In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the “groundbreaking” Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called “tough on crime”) campaigns and attendant electoral pressures. Building on this description and the work of empiricists, we bridge the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications. And in the final analysis, the thesis — namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases — is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics. Thus, pro-prosecution judges and their not-too-sophisticated message — “me tough on crime, you soft on crime” — should cease and desist or be ceased and desisted.

Parts.  Part I briefly describes elective judicial selection systems and thoroughly describes “tough-on-crime” judges, their messages, and their motivations. Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification. All of these frameworks — some four or five different legal and ethical barriers, depending on one’s jurisprudential view — ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence. By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.

Keith Swisher, Pro-Prosecution Judges: “Tough on Crime,” Soft on Strategy, Ripe for Disqualification, 52 Ariz. L. Rev. (forthcoming 2010).  A link to which can also be found in Articles

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally, Judicial Selection | Leave a Comment »

Caperton Repercussions

Posted by graycynthia on Friday, July, 17, 2009

In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct.  Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics.  (For a discussion of the caselaw after White, click here.)

In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indiana upheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee.  Bauer v. Shepard, Opinion and Order (July 7, 2009).  The court relied in part on Caperton.

Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications.  Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices:  “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . .  For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”:  “Courts, in our system, elaborate principles of law in the course of resolving disputes.  The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments.  The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity.  Judicial integrity is, in consequence, a state interest of the highest order.”

The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »

Caperton Clarity

Posted by judicialethicsforum on Monday, June, 15, 2009

As we predicted, the Supreme Court has voted five to four in general favor of the Due Process Clause and disfavor of judicial electioneering.  Justice Kennedy authored the opinion concluding that Justice Benjamin harbored a serious, objective “probability of bias” when he refused to recuse himself in a case involving his biggest supporter from his previous — and perhaps future — election.  Justice Benjamin also chose the two replacement jurists for the two justices who did recuse themselves from the case. 

The new (or perhaps more accurately, old-but-newly-fashioned) test has several formulations and considerations.  In essence, the Court held “that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’” Lavoie (quoting Monroeville in turn quoting Tumey).  Stated slightly differently, there is “a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  The opinion drew out two elements of the test: (i) election influence and (ii) case status.  The former inquiry “centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”  The Court clarified that “[w]hether campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  The Court also focused on the status of any impending or pending case.  The opinion has a heavy undercurrent that no one should get to choose — even with good money — their own judge in a pending matter.  As the Court put it, the “temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical.  It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.”  The principle seems simple and sound enough: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

Interestingly, the dissenters argued that the decision will create an increase, if not a flood, in “Caperton claim[s].”  Assuming those claims are meritorious — and judicial elections do provide fertile grounds for such claims  — we should thank this watershed decision and welcome the flood. 

The full text of the opinion, as well as the dissents of Chief Justice Roberts and Justice Scalia, can be found here.   

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »

Caperton: Answers to the Chief Justice’s “Twenty Questions” Times Two

Posted by kswisher on Monday, June, 15, 2009

In Caperton, Chief Justice Roberts dismissed the majority’s “probability of bias” test, calling it a “cure . . . worse than the disease.”  He believes that the “Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required,” which “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” which in the end, “will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”  His consequence connector seems miscalibrated.  It is exceedingly odd to claim that remedying this “extreme case” — one in which every justice, and the polled public, seem to agree bruises the perception of impartiality — will “erode public confidence in judicial impartiality.”  As an umpire who merely calls balls and strikes, perhaps the Chief Justice needs to get back in the game and out of the policy incubator.  His dissent is notable, but not because of these loose causal connections involving hypothetical challenges, but because it has attracted significant attention through the casting of forty questions — forty questions that the majority’s analysis allegedly cannot answer.  While some commentators have hailed the questions as an indication of infirmities in the majority’s analysis (e.g., “bad facts make bad law”), I respectfully dissent from the dissent; every question, save one or two, can be answered (and the ones that cannot seem to reflect more poorly on the questioner’s drafting than the majority’s analysis).  As a preliminary matter, I note again that an umpire who merely calls balls and strikes should be less concerned with questions not before the court, and indeed, every case could spawn a multitude of forward-looking questions not raised by the facts at hand, but let’s play the game these objections notwithstanding.  Proposed answers are in bold following the applicable questions. 

1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?  Without supplying any facts, this question should be answered with the majority’s test: “When a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  In other words, “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances ‘would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’”

2. How do we determine whether a given expenditure is “disproportionate”?  See answer to question 1.  Disproportionate to whatThe majority answered this one as well: “in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election.”

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign?  No, the latter support is worse—the influence is more direct.  What about contributions to independent outside groups supporting a candidate?  The question must be initially answered with a question: What “independent outside groups”?  But as general matter, yes, that the contributions were to some “independent outside groups” should be considered and could in the abstract be mitigating. 

4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?  Probably not (unless the other contributions and/or expenditures were to the judge’s opponent in the same race – a rather unlikely and self-defeating scenario). 

5. Does the amount at issue in the case matter?  It could.  What if this case were an employment dispute with only $10,000 at stake?  It could, if the case was so patently miniscule to the supporter as not to risk offending him/her/it no matter what the disposition.  If the question is cast toward the other side’s perspective, however, the amount in dispute is irrelevant—every litigant is entitled to a fair trial before a fair judge.  What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?  No, the form of relief sought is generally irrelevant. 

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?  No. 

7. How long does the probability of bias last? So long as support matters to holding the office and so long as a strong debt of gratitude lasts.  Does the probability of bias diminish over time as the election recedes?  Probably, but it depends primarily on his next question:  Does it matter whether the judge plans to run for reelection?  Yes.  

8. What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar?  Same analysis as above.  Must the judge recuse in all cases that affect the association’s interests?  Surely yes with respect to the pending case, but perhaps yes with respect to (unspecified) others as well. Must the judge recuse in all cases in which a party or lawyer is a member of that group?  Not all, but the question does not allow for anything beyond speculation.  Does it matter how much the litigant contributed to the association?  Yes, it matters.    

9. What if the case involves a social or ideological issue rather than a financial one?  Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue?  Is the “support” financial?  If yes, then yes.  If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases?  Of course, we need to know whether the supporter had a particular case pending in which she had a multi-million dollar interest.  If not, then generally no, recusal would not be required in all criminal cases, although an argument can be advanced forcefully that the Constitution is violated when you combine judicial elections with criminal cases, particularly in situations in which the judge’s influential supporters demand toughness on crime and would withhold support in its absence.   

10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?  This question is void for vagueness.   

11. What if the supporter is not a party to the pending or imminent case, but his interests will be affected by the decision?  Does the Court’s analysis apply if the supporter “chooses the judge” not in his case, but in someone else’s?  If the judge would probably be concerned about the effect of the pending case on his supporter (or the supporter would probably be concerned about the judge’s fidelity), then probably yes. 

12. What if the case implicates a regulatory issue that is of great importance to the party making the expenditures, even though he has no direct financial interest in the outcome (e.g., a facial challenge to an agency rulemaking or a suit seeking to limit an agency’s jurisdiction)?  The parenthetical example seems contradictory – there certainly could be a strong financial interest motivating the facial challenge.  But assuming there is not, we would be dealing with more attenuated corrupting forces.    

13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation?  No.   

14. Does the due process analysis consider the underlying merits of the suit?  Does it matter whether the decision is clearly right (or wrong) as a matter of state law?  No (although it could be circumstantial evidence of an actually biased judge). 

15. What if a lower court decision in favor of the supporter is affirmed on the merits on appeal, by a panel with no “debt of gratitude” to the supporter?  Does that “moot” the due process claim?  No.  Constitutionally unbiased judges are required at every level. 

16. What if the judge voted against the supporter in many other cases?  Yes, it could matter, as it could show (among other things) no debt of gratitude or expectation of future support.   

17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expressly disclaims the support of this person?  Yes, that could matter.

18. Should we assume that elected judges feel a “debt of hostility” towards major opponents of their candidacies?  Yes, although the term “hostility” is a bit loaded.  Must the judge recuse in cases involving individuals or groups who spent large amounts of money trying unsuccessfully to defeat him?  Possibly, but the question lacks sufficient circumstances.

19. If there is independent review of a judge’s recusal decision, e.g., by a panel of other judges, does this completely foreclose a due process claim?  Although independent review should be the procedure adopted for all, or virtually all, motions to disqualify, the commendable procedure does not eliminate the due process inquiry.  For example, these “independent” judges could be members of the same court and thus hesitant to disqualify their colleague, friend, and neighbor.  On a more basic level, a state procedure cannot trump the Constitution.

20. Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias?  They could.  How would we measure whether such support is disproportionate?   Same or similar methods and tests. 

21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?  Arguably yes, and as a practical matter, it always has (although it should be noted that many good judges bend over backwards to avoid actual bias in such cases).   

22. Does it matter whether the campaign expenditures come from a party or the party’s attorney?  Yes, if the latter, the influences are more attenuated. If from a lawyer, must the judge recuse in every case involving that attorney?  If the attorney is to the judge as Blankenship was to Justice Benjamin, then yes.   

23. Does what is unconstitutional vary from State to State?  Never.  What if particular States have a history of expensive judicial elections? Whether and in what form the state holds judicial elections matter, but their overall expensiveness likely would not matter.  The test would be the same, just with fewer zeros after the applicable numbers.    

24. Under the majority’s “objective” test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?  This is perhaps the first “good” question.  In the case, however, all three actors would come to the same conclusion—recusal.  As a general matter and as a matter of substantive recusal law, the actor probably should be the reasonable judge.   

25. What role does causation play in this analysis? The Court sends conflicting signals on this point. The majority asserts that “[w]hether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  But elsewhere in the opinion, the majority considers “the apparent effect such contribution had on the outcome of the election,” ante, at 14, and whether the litigant has been able to “choos[e] the judge in his own cause,” ante, at 16.  Yes, causation matters, but it need not be the sole, isolated cause of victory.  If causation is a pertinent factor, how do we know whether the contribution or expenditure had any effect on the outcome of the election?  It should not be terribly difficult—election success has been analyzed (often correctly) for a long time.  Moreover, as the majority noted, the task becomes easier once we acknowledge that we are dealing with probabilities, not actualities.  What if the judge won in a landslide?  Yes, that matters.  What if the judge won primarily because of his opponent’s missteps?  Yes, that matters as well.   

26. Is the due process analysis less probing for incumbent judges—who typically have a great advantage in elections—than for challengers?  No, it is not less probing, but such a “great advantage” should be considered wherever actually applicable. 

27. How final must the pending case be with respect to the contributor’s interest? What if, for example, the only issue on appeal is whether the court should certify a class of plaintiffs? Is recusal required just as if the issue in the pending case were ultimate liability?  Absolutely.

28. Which cases are implicated by this doctrine? Must the case be pending at the time of the election?  No, it must be reasonably likely to be brought.  Reasonably likely to be brought?  What about an important but unanticipated case filed shortly after the election?  If it is truly “unanticipated,” then the litigant certainly did not “choose” the judge in her own case.  This fact alone, however, would not be dispositive.   

29. When do we impute a probability of bias from one party to another?  Does a contribution from a corporation get imputed to its executives, and vice-versa?  By casting the legal fictions aside, the answer will become clear or clearer.   And obviously, in light of the Court’s holding, imputation can occur from a chief executive to the corporation.  Does a contribution or expenditure by one family member get imputed to other family members?  Probably, but not necessarily.   

30. What if the election is nonpartisan? It could matter, but without facts, it is unclear.  What if the election is just a yes-or-no vote about whether to retain an incumbent?  For anyone familiar with retention elections, this fact definitely matters.  For one, almost all judges up for retention are retained.  Moreover, it is much harder to “choose” your judge (save your one vote) at the retention election stage – it is much easier (but still difficult) to oust a judge.  

31. What type of support is disqualifying? What if the supporter’s expenditures are used to fund voter registration or get-out-the-vote efforts rather than television advertisements?  This twist could matter.  Among other factors, one would need to look at the causal link between these activities and electoral success and the expectation of future support.   

32. Are contributions or expenditures in connection with a primary aggregated with those in the general election?  Yes.  What if the contributor supported a different candidate in the primary? Does that dilute the debt of gratitude?  Perhaps slightly. 

33. What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review?  A strong candidate for an interlocutory appeal exception.  Or may such claims also be brought in federal district court under 42 U. S. C. §1983, which allows a person deprived of a federal right by a state official to sue for damages?  Perhaps, but it seems unlikely that pecuniary “damages” would be permitted.  If §1983 claims are available, who are the proper defendants? The judge? Yes.  The whole court?  Probably not.  The clerk of court?  Probably not.

34. What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983?  Perhaps.  What statutes of limitation should be applied to such suits?  The “statute of limitations” should not be an immediate issue—as Tuesday would have been the first day on which it should start to run.   

35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts?  Yes (unless the now-disqualified judge sat at the appellate level).  Is any part of the lower court judgment retained?  No. 

36. Does a litigant waive his due process claim if he waits until after decision to raise it? Probably (particularly in this instance—when the constitutional-rights waiver is not inadvertent, but instead a tactical decision that could lead to, among other things, wasted judicial proceedings).  Or would the claim only be ripe after decision, when the judge’s actions or vote suggest a probability of bias?  No. 

37. Are the parties entitled to discovery with respect to the judge’s recusal decision?  They should be so entitled at least with respect to facially meritorious claims.

38. If a judge erroneously fails to recuse, do we apply harmless-error review?  This is the second or third good question out of forty.  Just a prediction, but courts will probably say “no.”  [Again, however, it is a good question, and I personally have flip-flopped on the answer.] 

39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?  The judge gets to respond in his ruling on the disqualification motion (or sua sponte in his recusal ruling).  

40. What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation?  Once the case is no longer pending, the judge could speak about the merits of the Caperton claim.  The concern misses the mark a bit: One of the reasons these “perception”- or “appearance”-based tests have arisen is to avoid the ugly impact of implying, calling, and proving the judge actually biased.  The Caperton-disqualified judge can still say – as has Justice Benjamin following the Supreme Court’s decision – that he was not actually biased.

* * *

Obviously, the answers above are not gospel, and by comment or otherwise, other answers are encouraged.  

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | 1 Comment »

On Empathy in Judging

Posted by judicialethicsforum on Sunday, May, 24, 2009

President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law.  Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied.  “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says.  “It may also lead to a veritably religious veneration for the rules and their imagined author.  The sovereign and his command may be deified.”  When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law.  The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.

Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:                 

To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence.  The question for the judge is:  “Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?”

Similarly, former N.Y. Chief Judge Judith Kaye observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them. . . .  [A] far greater danger exists that they do not.”

By: Monroe Freedman, Hofstra University School of Law

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