Judicial campaigns and elections

  • November 4, 2009
    Only months after the U.S. Supreme Court ruled that judicial campaign contributions can force recusal in certain instances, the Wisconsin Suprmeme Court narrowly voted in favor of a judicial conduct rule that says endorsements and campaign contributions alone are not enough to force a judge off a case.

    On a 4-3 vote, the Wisconsin Supreme Court adopted the rule, which was backed by business lobbying groups. Justice Patience Roggensack, writing for the majority, maintained that the rule will "send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive."

    But in dissent, Justice N. Patrick Crooks wrote, "I think what it's going to do is add to the perceptions (of bias) that are apparently out there rather than put them to rest." The Milwaukee Journal Sentinel reported that the majority in the case, In the matter of Amending the Rules of Judicial Conduct, rejected an alternate proposal pushed by the League of Women Voters of Wisconsin that would have triggered judicial recusals in certain instances.

    In an article for the State Bar of Wisconsin's Web site, Alex De Grand wrote that the "First Amendment outweighed due process arguments," noting that Justice Roggensack wrote, "My major concern is the First Amendment."

    In June, the U.S. Supreme Court ruled in Caperton v. Massey that the First Amendment, however, did not prevent it from fashioning a recusal rule. "We conclude," Justice Anthony Kennedy wrote for the 5-4 majority, "that 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 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 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."

    In guest post for ACSblog, Professor Richard L. Hasen, of Loyola Law School, noted that while judicial elections, which 39 states have, are not going to disappear, Caperton would provide a "backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited."

    For more analysis of judicial elections, see video of a panel discussion, "Judicial Elections: Financing, Recusal, and Judicial Independence," from the 2009 ACS National convention and an ACSblog interview with Justice at Stake's Bert Brandenburg on the impact of Caperton

  • July 16, 2009

    Following his participation in a panel discussion on judicial elections at the 2009 ACS National Convention, Bert Brandenburg, executive director of the Justice at Stake Campaign, talked with ACSblog about the potential impact of the recent Supreme Court decision in Caperton v. A.T. Massey on state judicial elections. In Caperton, the high court ruled that a West Virginia Supreme Court justice should have disqualified himself from hearing a case involving a campaign contributor. Watch Brandenburg's interview below or download a podcast here.

  • June 8, 2009
    Guest Post

    By Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles, and author of the Election Law Blog, where this post was initially published.
    As judicial elections in recent years have become, in the words of Roy Schotland, "noisier, nastier, and costlier," litigants have consistently sought to limit some of the excesses sometimes seen in judicial elections, which 39 states use for at least some of their judges. Until today's opinion in Caperton v. Massey, the Supreme Court refused to impose limits as a matter of constitutional law. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down on First Amendment grounds a state judicial code provision barring judicial candidates from "announcing" their views on disputed legal or political issues. Since White, as I've chronicled, lower federal courts have continued relying on the First Amendment to strike down a number of judicial codes seeking to keep judicial campaigns as something somewhat different from ordinary elections. (Justice O'Connor has since expressed regret about her crucial fifth vote in White, and has been working on the issue of judicial independence since retiring from the Court.) Since White and until today's decision in Caperton, the Supreme Court refused to consider other judicial election cases.