Phillips on Caperton

[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 thing:
 

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 debate 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 system." 
 
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.