Fair Courts E-lert: Kay, Evans Bill Targets Controversial Campaign Contributions
Editorial, A Reform for Fair Courts, New York Times, January 30, 2012.
2. Last Monday, without comment, the Supreme Court “turned aside a motion from a political advocacy group [arguing] that Justice Elena Kagan should not participate in the upcoming blockbuster appeals over the constitutionality of health care reform.” Law Professors William Yeomans and Herman Schwartz criticize the Court’s practice of not explaining recusal decisions as a “fetish for secrecy” and argue that while courts certainly “need secrecy for their deliberations and decision making[,] . . . there can be no harm in a justice explaining why he or she withdraws from a case or refuses to withdraw.” Yeomans and Schwartz contend that Chief Justice Roberts’ latest year-end report, which rejected calls for the justices to “be subject to the basic code of ethics that governs all other federal judges and . . . provide some transparency to their recusal decisions” makes a mockery of the idea that “courts’ fundamental legitimacy rests on the notion that judges apply the facts to the law impartially and explain what they have done in reasoned opinions for all to read.”
Bill Mears, High court turns aside recusal request on health care challenge, CNN, January 23, 2012; William Yeomans and Herman Schwartz, Roberts to America: Trust Us, Politico, January 24, 2012.
3. Writing in Slate, Dahlia Lithwick adds further perspective to the significance of Chief Justice Roberts’ rejecting the argument that Supreme Court Justices should explain their recusal decisions. Writing that Roberts’ defense of “his (unnamed) colleagues from public accusations of bias [rests on] assurances that he knows them personally and trusts them to make sound recusal decisions because of the strength of their characters,” Lithwick suggests this may not be sufficient. Particularly for observers “who have admired the ways in which civility as practiced at the Supreme Court allows for a uniquely elevated and respectful discourse,” Lithwick writes, it is “troubling to see civility deployed as a shield to hide questionable judicial conduct from the public”—as was the case, she suggests, when embattled Wisconsin Supreme Court Michael Gableman invoked Roberts’ rationale in refusing to step aside from several cases involving a lawfirm that had given him free legal services. Lithwick’s observation that “an impenetrable black ‘Trust Us’ cloak should not be a means of sidestepping legitimate recusal questions” resonates in the case of Gableman, who brushed aside suggestions that his receipt of substantial free legal services raised questions about his impartiality without going “into the merits of the allegations against him or explain[ing] why he did not believe there was an appearance of a conflict of interest.” A New York Times editorial condemned Gableman’s conduct as “indefensible.”
Dahlia Lithwick, The Political and the Personal, Slate, January 25, 2012; Gableman won't recuse himself from disputed Supreme Court cases, Associated Press, January 21, 2012; Editorial, A Wisconsin Judge’s Refusal to Recuse, New York Times, January 24, 2012.
4. Concerns about judicial campaign dollars impacting judges’ impartiality have led two legislators in Illinois to introduce a bill that would “force attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to that judge by the attorney or their firm within the past five years”—and would allow the non-contributing party to demand recusal. In announcing the proposal, one of the sponsoring legislators stated that “The question of fairness in our court system continues to be a concern . . . especially when judges receive thousands of dollars from the very same lawyers appearing before them . . . . Whether the judge was influenced by those campaign contributions or not, it gives the appearance of 'Justice for Sale' and is perceived as a conflict of interest. This reform legislation will remove the concern that campaign donations influence the judicial process."
Kevin Bersett, Kay, Evans bill targets controversial campaign contributions, BND.com, January 25, 2012.
Supreme Court
5. Writing in Politico, law professor Jeffrey Rosen makes the case that the absence of any Justices with prior political experience on the current Supreme Court has given the Court a tin ear when it comes to the likely political reactions to its decisions. Rosen contrasts the Court’s awareness of the political implications of the controversial ruling in Brown v. Board of Education—issued when a majority of Justices had previously held elected political office—with the blithe, and “spectacularly wrong” prediction of the current Court—made up solely of former judges and academics—that the decision in Citizens United v. FEC “would have no significant impact on Americans’ confidence in their political system.” Rosen argues that recent examples in which the Justices have been “dramatically wrong” about the public reactions to their decisions demonstrates that “we need fewer former judges and more former politicians on the court.”
Jeffrey Rosen, Citizens United v. FEC decision proves justice is blind -- politically, Politico, January 25, 2012.
Judicial Ethics
6. Reports that two judges in Kansas “have made contributions to the state’s leading anti-abortion political action committee — after hearing cases involving abortion-related issues” have given rise to a debate about the propriety of sitting judges making donations to political groups. The two Sedgwick County judges, Eric Yost and Jeffrey Goering, each gave $100 to the Kansans for Life PAC in 2011, and each has ruled on abortion issues recently; last year, Goering issued a temporary order prohibiting a Wichita doctor from using her office for abortions, and Yost was involved in abortion litigation earlier in the decade. The two judges defend their contributions as ethically permissible and entirely appropriate, but “some legal scholars, and at least one Kansas lawmaker, say that donations to any political action committee by a sitting judge present at least the appearance of a conflict of interest and that the practice deserves scrutiny.”
Dave Helling, Sedgwick County judges contributed to anti-abortion PAC, Wichita Eagle, January 28, 2012.
Judicial Diversity
7. A Times of Trenton editorial applauds New Jersey Governor Chris Christie for his two most recent nominations to the state’s high Court; Christie’s nominees include Bruce Harris, an African American who would be the first openly gay jurist to sit on the bench, and Philip Kwon, who would be the court’s first Asian-American member. Halfway across the country, in Eufala, Alabama, an opinion piece bemoans the lack of partisan diversity on Alabama’s all-Republican Supreme Court, asking why the current Chief Justice has chosen to “brag” about the court’s single-party membership. The piece disclaims any partisan bias, writing that “a partisan court is troublesome, and not because all nine justices are Republican. We’d say the same thing if they were all Democrats.”
Editorial, Gov. Christie's effort to bring diversity to N.J. Supreme Court deserves praise,Times of Trenton, January 25, 2012; Patrick Johnston, Why Brag about a Partisan Court?, Eufala Tribune, January 27, 2012.
