Should judges avoid cases related to major supporters?

Listen to this article

As third-party “investments” in state Supreme Court races increase, so too is discussion on when a justice should step down from cases involving groups that substantially support their election effort.

On March 12, three legal panelists debated the notion that deep-pocketed organizations are influencing state Supreme Court elections and whether recusal is an adequate device for maintaining public confidence in the high court.

Panelist Richard M. Esenberg, University of Marquette Law Professor, suggested justices have more difficulty deciding if and when they should decline participation in a case.

“If I were to recuse myself in a circuit court case, the file is taken across the hall and given to someone else,” said Esenberg. “If a Supreme Court justice recuses himself or herself, in a collegial court, which rules by majority, it can have an impact on the outcome.”

James Sample, counsel for the Brennan Center for Justice in New York, said interest groups are having a significant impact on judicial elections. The panelist cited a recent poll of Wisconsin residents to support his position.

A January 2008 American Viewpoint poll of 600 voters in Wisconsin revealed 78 percent of the respondents thought campaign contributions made to judges have “a great deal” or “some” influence on their decision-making.

But James Bopp Jr., general counsel for the James Madison Center for Free Speech in Indiana, downplayed the idea that justices act impartially toward one party over another.

Although the panelist conceded that interest group spending likely contributed to current Wisconsin Supreme Court Justice Annette K. Ziegler’s victory in 2007, Bopp did not think it confirmed a public perception of impartiality.

“This interpretation is completely novel,” said Bopp of Sample’s contention. “I have not yet found a single case in which recusal was required because either a judge announced his views on disputed political or legal issues, or that he or she accepted a campaign contribution.”

According to the Wisconsin Democracy Campaign (WDC), business group Wisconsin Manufacturers and Commerce (WMC) spent more than $2 million in support of Ziegler during last year’s election. When a case in which WMC filed an amicus brief came before the Supreme Court in December, Ziegler did not recuse herself.

In a separate interview, WDC Executive Director Michael McCabe noted that recusal is a voluntary action on the part of a judge, but he publicly called for Ziegler to step down from the case involving WMC.

“There are guidelines in the judicial code to suggest when, but there is nothing members of the public, news reporters or watchdogs can do to compel recusal,” said McCabe.

Sample said a legitimate mechanism for replacing justices who disqualify themselves is needed.

“Wisconsin doesn’t have a good replacement system on the high court,” said Sample.

But Esenberg questioned the limits of recusal and said the solution advocated by Sample was “formalistic.”

“You got a campaign contribution, so recuse yourself, because it creates the appearance of impropriety,” said Esenberg. “No need to engage in any kind of balancing test, other than, you need to step down.”

Bopp added that while he supports recusal when judges cannot be impartial, the mere appearance of impartiality is not enough to warrant a recusal.

“I think there has to be some reality to the appearance,” said Bopp. “We’re talking about the First Amendment and appearance can be created by propaganda.”

Sample said he backs a balancing of First Amendment rights and due process, but noted millions of dollars can “buy a lot of propaganda”.

“It’s a question of whether we want to put our heads in the sand and say money is not influencing decisions making,” said Sample.