Brennan Center for Justice

*Cross-posted from Slate

In 1920s Chicago, it was widely known that Al Capone and his
associates had bribed so many public officials that "justice" was
available only to the highest bidder. Even when justice was genuinely
served, a perception of pervasive corruption undermined public
confidence that the rule of law prevailed. Today, a similar confidence
problem is brewing in courts around the country. And in Illinois, the
appearance of South Side Chicago "justice" did not go away. It just
moved to Springfield.

Today, the U.S. Supreme Court declined to hear the case of Avery v. State Farm Automobile Ins. Co., an appeal out of the Illinois Supreme Court. Avery
is the fallout from the most expensive state judicial campaign in U.S.
history: the 2004 race for a seat on the Illinois Supreme Court. In
that race, Illinois Appellate Judge Gordon Maag and his opponent,
then-Circuit Judge Lloyd Karmeier, combined to raise $9.3 million in political contributions—nearly double the previous national record for any state judicial election.

The
context of that campaign, and the events that followed the election,
demonstrate the tension between expensive judicial elections and public
confidence in our courts. Longtime Supreme Court analyst Lyle Denniston
neatly summarized the ethics component of Avery
as follows: "Should an elected judge, who accepts large campaign
donations, sit on a case that directly affects the financial or
business interests of the donors and their associates? Put as an
ethical question, the answer would seem to be obvious: No." Sometimes,
however, ethics alone do not suffice to protect constitutional rights.
By passing on Avery, the Supreme Court missed a
golden opportunity to clarify the protections required when politics
and constitutional rights collide in the courtroom.

In May 2003, the Supreme Court of Illinois heard oral arguments in Avery.
The dispute involved a class action against State Farm on behalf of 4.7
million policyholders in 48 states. The appeal was not decided until
after the November 2004 election. In other words, the appeal was pending before the Supreme Court of Illinois, and had been for over a year, by the time of the 2004 campaign. The stakes in Avery
were hardly trivial. State Farm's appeal sought to overturn a $1
billion lower-court verdict, including $456 million in contractual
damages.

Illinois lacks campaign contribution limits. As a
result, the $9.3 million raised by Karmeier and Maag did not represent
hundreds of thousands of $20 checks from Aunt Gladys and Uncle Merle.
Rather, the sum largely represented contributions from frequent
litigants in the Illinois courts. And State Farm more than lived up to
its slogan. "Like a good neighbor" the company was indeed "there" for
Judge Karmeier, who received more than $350,000 in direct contributions
from its employees, lawyers, and others directly involved with the
company and/or the case. Karmeier got an additional $1 million from
larger groups of which State Farm was a member or to which it
contributed. As is often the case, he won both the fund-raising battle
and the election.

Although Karmeier himself described the fund
raising as "obscene," his concern for appearances waned almost
immediately upon election. Once seated on the Illinois high court, he
refused to recuse himself from the Avery appeal. He then cast
the deciding vote on the breach of contract claims, overturning that
verdict against State Farm. The public, not to mention the opposing
litigants, could be forgiven for questioning whether justice was truly
served.

Was Justice Karmeier's decision legitimate,
well-reasoned, unbiased? Very possibly yes, but we will never know.
Overshadowing the merits of his decision is a single stark fact:
Without Karmeier's vote, State Farm would have faced further
proceedings on claims valued at up to $456 million. That's either a
coincidence or an impressive rate of return on State Farm's investment.
Which of the two it was is almost irrelevant—especially where a
correlation between a contributor and a decision can't be known. In
either case, the cost to the courts themselves is immeasurable.

Thirty-eight states, including Illinois, elect their supreme courts. Recent studies
of judicial elections indicate that the trend toward high levels of
judicial-campaign fund raising in the states began in the late 1990s.
During the 1999–2000 cycle, state supreme court candidates raised $45.6 million—61
percent more than just two years earlier, and more than double the
amount raised in 1994. Nine states broke aggregate candidate
fund-raising records in the 2003–04 election cycle. This explosion in
fund raising is not a coincidence. In 2003-04, 35 of 43 high court
races were won by the candidate who raised the most funds; that's a
success rate of 81 percent.

The high price of winning, however,
falls hard on the public. Evidence shows a steady decline in public
confidence in fair courts. Polls
show that 76 percent of Americans believe that campaign contributions
have at least some impact on judges' decisions in the courtroom. Far
more worrisome? The fact that nationally, judges now share this view:
According to a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, nearly half the judges surveyed themselves believe that campaign contributions influence judicial decisions. Not even the judges believe their colleagues consist only of "Untouchables."

The
statistics illustrate that the public intuitively knows what
constitutional theorists strive to prove—that judicial independence
matters. Elected legislators are expected to serve
interest-group constituencies. They are expected to build coalitions;
to promise outcomes; and to be held accountable for those promises. The
representative branches function best when officials are lobbied by
contributors and non-contributors alike. But judges—including elected
judges—are different. They function best when "lobbied" not at all, or
only within the adversarial process and on the basis of law. Judges are
accountable for the fundamental American promise of fair trials before
impartial arbiters. Therein lies the tragic consequence of money's
increasing influence in judicial elections. In the long term, we all suffer—including interest groups—when any decision reinforces suspicions that the biggest donor, and not the best case, wins.

The
system cannot be left to police itself. First, it's unreasonable to
expect lawyers to police judges: Recusal motions are risky propositions
for litigants who can ill-afford to antagonize judges before whom they
will appear. Second, it's wrong to expect judges to fully police
themselves: According to the ABA's Model Code of Judicial Conduct,
a "judge shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned." The Illinois
Supreme Court has the same rule. Is it a stretch to assert that Justice Karmeier's impartiality "might reasonably" have been questioned in Avery?
Of course not. But Karmeier got to make that decision in his own case,
as is the standard practice. In most instances it's effective.
Litigants deserve due process more than "most" of the time.

In a 2002 concurrence in Republican Party of Minnesota v. White,
Justice Anthony Kennedy wrote that maintaining the integrity of the
judiciary and respect for its judgments is a vital "state interest of
the highest order." States with judicial elections employ various
mechanisms to reduce or sever the link between contributors and judges.
States attempt to reduce the influence of money through publicly
financed judicial campaigns, and through campaign-contribution limits
that prevent large donations from individuals and organizations. In
varying degrees, states have adopted canons of judicial conduct
intended to place a buffer between judges and traditional interest
group politics. No measures are panaceas, however, and as the role of
money increases in judicial elections, the backup safeguard of
mandatory recusal in any case involving a real or perceived conflict of
interest may soon be necessary to preserve the respect to which Justice
Kennedy refers.

Today, the Supreme Court passed on the chance
to give states guidance as to when judicial recusal might be
constitutionally required. States do not have the corresponding luxury
of ignoring that question. The precise contours of the optimal recusal
system are subject to honest debate and careful consideration. Still, Avery
demonstrates that objective, peer-enforced standards, applied in
extreme circumstances, should at least be part of the discussion.

Thirty states will hold supreme court elections in 2006. Although they will now lack the guidance that Supreme Court review in Avery
could have provided, they are nonetheless in a position to thwart the
corrosive influence of big money in their courtrooms. In that respect,
they have much to learn from another Illinois case from 75 years ago.

In
his 1931 trial on income tax evasion, Al Capone initially pleaded
guilty, believing he would be able to plea-bargain. When U.S. District
Court Judge James H. Wilkerson refused to cut a deal, Capone changed
his plea, and his associates attempted to bribe the jury. But, in an
extraordinary measure designed to ensure impartial justice, Wilkerson
switched juries at the last moment. Wilkerson stated:
"It is time for somebody to impress upon the defendant that it is
utterly impossible to bargain with a federal court." States around the
country must work to ensure that bargaining with elected state judges
is—and appears to be—equally impossible. More modest means of doing so
will suffice. But the appearance problem is just as real.