Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton

November 14, 2014


The Brennan Center for Justice, N.Y.U. Journal of Legislation and Public Policy, and the American Bar Association’s Center for Professional Responsibility present:

Courts, Campaigns, and Corruption:
Judicial Recusal Five Years After Caperton

Friday, November 14, 2014
9:00 a.m. - 4:00 p.m.
Registration at 8:30 a.m.

Greenberg Lounge, Vanderbilt Hall
NYU School of Law
40 Washington Square South
New York, NY 10012

State supreme court justices, law professors, and leading law experts explore the issue of judicial partiality and the state of recusal reform five years after Caperton v. A.T. Massey Coal Co., the 2009 case in which the Supreme Court held that a litigant’s due process rights can be violated when an elected judge refuses recusal in a case in which that judge received significant campaign support from a litigant. The Symposium featured three panels focusing on different areas of the Caperton decision and issues of bias and recusal, and a lunch during which several judges and justices discused judicial perspectives on those issues. 

A full transcript of the symposium will be published in Volume 18 of the New York University Journal of Legislation and Public Policy in summer 2015. Academics and advocates who are interested and active in recusal issues are encouraged to submit pieces to the Journal for consideration in the symposium issue. Submissions are due on February 7, 2015.

The Brennan Center's judicial recusal reform resource page can be found here

Panel 1: Caperton and the Courts: Did the Floodgates Open?

Adam Liptak, Supreme Court Correspondent, New York Times

James Sample, Associate Professor of Law, Hofstra School of Law; Former Counsel, Brennan Center for Justice
Brad Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former Chairman, Federal Election Commission
Keith Swisher, Associate Professor of Law, Arizona Summit Law School

In the first panel of the day, speakers discussed the specific facts of the Caperton case and the quality of the guidance provided by the majority opinion. Looking at how Caperton fits into the paradigm of First Amendment campaign finance law, the panelists explored why Justice Kennedy appears to believe that “judges are different” when it comes to campaign finance cases. A debate followed over how far the decision should extend, and the discussion concluded with a look at the adequacy of state reform efforts in the wake of Caperton.

Panel 2: The State of Recusal Reform

Charles Geyh, Reporter, ABA Commission to Evaluate the Model Code of Judicial Conduct; John F. Kimberly Professor of Law, Maurer School of Law, Indiana University at Bloomington

Robert Peck, President, Center for Constitutional Litigation
Myles Lynk, Peter Kiewit Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University; Incoming Chairman, ABA Standing Committee on Ethics and Professional Responsibility
The Honorable Toni Clarke, Associate Judge, Seventh Judicial Circuit, Circuit Court for Prince George’s County, Maryland

The second panel began with a discussion of the four historical stages of recusal reform. The American Bar Association’s most recent attempt to create model recusal rules was talked about, as was the need to address the new reality of increased campaign contributions and independent expenditures in state judicial races. There was debate as to whether judicial recusal should be addressed through reforms to ethical rules or procedural rules, and the resource constraints imposed by recusal motions, such as who replaces a judge once they recuse themselves, were also examined.

Judicial Lunch: A View From the Bench

Barbara Gillers, Adjunct Professor of Law, New York University School of Law

The Honorable Jonathan Lippman, Chief Judge, New York State Court of Appeals
The Honorable Sue Bell Cobb, Former Chief Justice, Alabama Supreme Court
The Honorable Maureen O’Connor, Chief Justice, Ohio Supreme Court
The Honorable Louis Butler, Former Justice, Wisconsin Supreme Court

The strengths and weaknesses of the different recusal regimes in New York, Alabama, Ohio, and Wisconsin were discussed in this panel. Panelists noted the detrimental impact of judicial campaign contributions on public confidence in the courts, and the need to recognize the appearance of impropriety, not just actual bias, as a basis for recusal. The troubling role of independent expenditures in judicial campaigns was discussed, as was the importance of independent review of challenged judges’ recusal decisions. Finally, the viability of a rule requiring litigants and their lawyers to disclose judicial campaign contributions was debated. 

Panel 3: Caperton’s Next Generation: Beyond the Bank

Jed Shugerman, Professor, Fordham University School of Law

Debra Lynn Bassett, Justice Marshall F. McComb Professor of Law, Southwestern Law School
Gregory Parks, Assistant Professor of Law, Wake Forest University School of Law
Dmitry Bam, Associate Professor of Law, University of Maine Law School
Rex Perschbacher, Daniel J. Dykstra Endowed Chair, UC Davis School of Law

In this panel, participants discussed judicial independence as a relative concept; from whom or what do we want judges to be independent? They also talked about the effect of implicit bias on judicial decision-making and potential solutions to the problem of implicit bias. Sources of judicial bias other than campaign contributions were considered, including campaign promises, the attitudes of the electorate, and the judge’s personal characteristics. Alternatives tools to address judicial bias, such as voter education, implicit bias training, and diversification of the bench, were discussed, as were the relative merits of appointive and elective systems for the selection of judges.