Phillips on Caperton

Texas Chief Justice Tom Phillips, Linda Greenhouse writes, "suggests that very little will come of Caperton in the end." Greenhouse's analysis, which she attributes to Phillips' views, fundamentally mischaracterizes them, and consequently misses the mark on Caperton's larger implications.

June 25, 2009

[Cross-posted from Rick Hasen's Election Law Blog of
June 25, 2009

Linda Greenhouse's analysis, posted by Rick yesterday,
is effectively limited so as to exclude real-world implications apart from a
decision being used as direct, dispositive precedent.  Particularly on the
score of judicial disqualification, where the vast, vast majority of the
lifting is done by the rules, which are now plainly reinforced by a floor of
constitutional magnitude, such a scope of analysis is unduly confined. 
The narrow view that for a decision to be effective or meaningful it must be
capable of being immediately operationalized as dispositive precedent it itself
and in a wide class of cases is myopic.
That said, Greenhouse makes a surprising error in both accuracy and judgment
when she attributes her own views to Texas Chief Justice Tom Phillips. 
The last sentence of Greenhouse's post states that Phillips "suggests that
very little will come of Caperton in the end."  She is simply wrong
to attribute that view to Phillips, who categorically does not hold it.
Phillips served, along with Roy Schotland and George Patton, as counsel on the
Conference of Chief Justices amicus brief.  The very fact that the
Conference filed a brief in the case is telling.  It was the first time in
the Conference's history as an organized entity that it filed in review of a
state rather than federal court judgment, i.e., in review of one of its
own.  The CCJ is on the front lines, a fact not lost on the Court which
discussed the brief, which while formally in support of neither side, was
clearly and indisputably supportive of Petitioners' position, repeatedly during
oral argument.
The CCJ's brief said, in essence two things: (1) that they believed due process
could be jeopardized by the very type of outlier level of spending and
circumstances in Caperton, AND (2) that if the Court ruled - as it ultimately
did - without drawing a bright line, then they were well prepared to deal with
that challenge.
So far the facts are already bearing that second prong out.  Consider just
briefly, the following facts rather than characterizations.  Since
Caperton, Nevada, Wisconsin, Michigan, West Virginia, Ohio, and Washington have
already formed commissions and/or have opened up comment periods and/or taken
up or accelerated reviews of their existing recusal practices. That's
meaningless?  Hardly.  And it is exactly what the "well-meaning
folks" that her post so casually dismisses ---including people like myself
and Phillips and Schotland were seeking.  I can tell you that the narrow,
fact-based decision is exactly what I, like Petitioners, believed was the best
case scenario all along, and we framed our briefs accordingly. If anyone
thought the case "promised more" than that, their belief was founded
in their own projection, rather than in something promised by those close to
the case.
Likewise, it would have been inappropriate for the Court to draw the bright
lines that the dissenters excoriate the majority for failing to draw. 
Chief Justice Roberts's questions are well-taken but they are directed at the
majority rather than the states, who should and will address them in the first
instance if at all.  Prospectively, it is also worth noting the backstop
aspect of this case.  If the Court had done nothing here, then the
questions in dissent could just as easily be flipped.  E.g,, What about
$10 million?  $100 million? Is that enough?  Etc... So the slippery
slope arguments and the floodgates arguments provide for nice sassy copy, but
ultimately they do little substantive lifting.
Phillips, like the 27 former state supreme court justices from around the
country who supported the Petitioners, is widely on record as celebrating the
decision AND as recognizing its import, including in the Tony Mauro interview
referenced, but apparently only lightly read, by Greenhouse.  Phillips is
hardly new to these issues, having worked tirelessly on them in Texas; and
having written about them widely, including authoring the foreword to a Brennan
Center monograph
on recusal last year.  For just a brief sampling of
Phillips actual views, as opposed to those wrongly attributed to him, consider
the following:
On the day of the decision, Nina
Totenberg reported
: "Phillips said his organization is pleased that
the Supreme Court has drawn a line in the sand but left the states with
flexibility.  'The Court has certainly invited the states to explore
whether their more concrete rules on the state level that would exceed the Due
Process floor are needed.'" 
Likewise, in Tony
Mauro's insightful interview
, in which Phillips rightly points out the
narrowness of the constitutionally-dispositive aspect of Caperton, here is a
short sampling of what Phillips actually says as to what may come of the case:

Phillips: "Caperton established a principle that is
really important: There are constitutional concerns with a judge sitting in
judgment of a case where a party is a significant donor. At some point, the
support becomes so substantial and so overwhelming that due process requires
the judge to step aside, even if neither the donor not the judge did anything
illegal or even unethical. Until now, that was an unanswered issue. That's the
most important thing in the case."
Mauro: "What does the decision say about the difference
between judicial elections and other elections?"Phillips: "That's another important
principle in the case. No one would say that a Senator couldn't vote on armed
services appropriations merely because the defense industry had spent large
sums in connection with the senator's campaign. And yet that is precisely what
the Court held with respect to a state judge. The opinion affirmed that, even
if judges are selected in precisely the same as political officials, they have
a fundamentally different role in government that raises concerns that are of
constitutional magnitude."

And as for the floodgates arguments, Phillips makes the very correct point that
Caperton may lead to an increase in rules-based recusal motions, but that given
the current state of affairs in judicial elections, that would be a very good

Phillips:  "The majority opinion recognized, even
urges, states to pass recusal rules that are more rigorous than the due process
floor in order to ensure the appearance and reality of impartial judges.
TheCaperton case may cause more of those rules-based motions to be filed, and
state courts may have to grapple with the types of problems that the Chief
Justice raised. And, on the whole, it will be good for these rather murky
questions to be fleshed out. And, moreover, it will be good to have a
heightened interest in what is required to have fair and impartial justices on
the bench."


Some hope states will abandon elections in light of the decision. Others, like
Chief Justice Roberts, fear that the floodgates of Caperton claims will open.
But as Eliza
Carney's excellent recent column
states: "In fact, both scenarios miss
the mark. The ruling's more likely outcome is that state supreme courts will
establish and enforce clearer recusal rules for judges who may face conflicts
of interest, guidelines that are long overdue." 
As noted above, and as previously noted on this list by Roy, significant
progress is already being made in that direction.Whether one thinks such
consequences are or are not positive and meaningful is a matter of divergent
opinion on this list and elsewhere.  To that end, it's worth noting that
just 15 months ago, in this
sponsored by the Federalist Society, Jim Bopp, in high dudgeon,
characterized the very notion of ANY campaign expenditure-based due process
floor as "liberal New York City extremism."  But we now know
that it's the law. 

And suffice it to say that when, among others, Justice
Kennedy, the Conference of Chief Justices, 27 former state supreme court
justices, Intel, Wal-Mart, Pepsi, Lockheed Martin, etc...look
"extreme" from where one sits, it might be time for some
re-calibration.  (Or at least it might be time to tone down the
dudgeon).  It might also be time for some serious consideration of the
unique countervailing interests in judicial elections. 
On that score, i.e., on the far more consequential level of rules-based
disqualification, indeed, even Chief Justice Roberts's and Justice Scalia's
dissents reflect the need for greater vigilance than displayed by Justice
Benjamin (see Chief Justice Roberts: "States are, of course free to adopt
broader recusal rules than the Constitution requires..."; See Justice
Scalia: [S]hould judges sometimes recuse even where the clear commands of our
prior due process law do not require it? Undoubtedly.").  
But whatever one's views as to the import of Caperton, this much should be
clear: Tom Phillips's view is that it is quite important. Indeed, in his own
actual words, he states that Caperton might even "spur states to consider
whether our 19th century method of selecting judges works well in the 21st
century.  The old friends and neighbors method of selcting a judge has
been replaced by the need for expensive media campaigns...and these huge
independent attack ads that so damage the credibility of our justice
Agree or disagree as you wish.  But the actual quotes from Phillips, as
opposed to the characterizations, reflect his actual views.  Count me in
the camp of agreeing with him, with Ted Olson, with Roy, and with those other
"well-meaning folks."


Linda Greenhouse's response to James Sample's post, above:

I sense a bit of "Linda, how
could you" from my friends in the progressive community from my failure
to salute
the outcome in Caperton. I didn't mean to put words
in former Chief Justice Phillips' mouth. Yes, he told Tony Mauro that the
decision established "a principle that is really important." But
here'' what he also said in that interview that led me to characterize his
views as I did -- his views on the decision itself, let me emphasize, not on
the principle:

He said that as he read the holding, it was limited to the following: Due
process is violated ONLY (my emphasis) when: "(1) a person (2) with a
personal stake in a particular case (3) had a significant (4) and
disproportionate influence (5) in placing the judge on the case ... (6) when
the case was pending or imminent." He went on to conclude: "Given how
narrow that holding is, I'm not sure Caperton will ever be direct precedent for
another recusal."

That's what the man (much more expert that I on this issue) actually said, and
that's what my post reflected. My personal opinion is that if that's all there
is, or all that a majority can manage to extract from the extraordinary facts,
I'm not sure this case was worth the effort.