Comments of Adam Skaggs
Senior Counsel, Brennan Center for Justice at NYU School of Law
Proposed Amendments to the Model Code of Judicial Conduct Regarding Judicial Disqualifications
Before the American Bar Association’s
Standing Committee on Ethics and Professional Responsibility and Standing Committee on Professional Discipline
February 3, 2012
On behalf of the Brennan Center for Justice at NYU School of Law, I want to thank the American Bar Association’s Standing Committees on Ethics and Professional Responsibility and Professional Discipline for the opportunity to speak with you today—and for the important leadership the Committees have demonstrated on strengthening judicial disqualification rules.
The Brennan Center is a nonpartisan think tank and legal advocacy organization that focuses on fundamental issues of democracy and justice. Our Fair Courts project works to preserve fair and impartial courts and their role as the ultimate guarantor of equal justice in our constitutional democracy. Our research, public education, and advocacy focus on improving judicial selection systems (including elections), increasing diversity on the bench, promoting measures of accountability that are appropriate for judges, and keeping courts in balance with other governmental branches.
The Brennan Center commends the Committees for their attention to the important matter of judicial disqualification, and for their leadership in working to develop model rules for state courts. In particular, we applaud the Committees’ prompt response to the call in Resolution 107, approved by the ABA’s House of Delegates in 2011, for the Committees to consider what amendments, if any, should be made to the ABA’s Model Code of Judicial Conduct or Model Rules of Professional Conduct.
Reforming judicial disqualification practice in the states, and the related rules of professional conduct, is necessary to combat mounting threats to public confidence in the impartiality of the judiciary. In particular, recusal reform is needed to defeat the growing perception that judges’ decisions in the courtroom are influenced by partisan political concerns and—in the 39 states that elect judges—judicial campaign spending.
In the last decade, spending on state supreme court elections more than doubled, from $83.3 million spent in 1990-1999 to $206.9 million in 2000-2009. Of the 22 states that hold competitive elections for their top judges, 20 set all-time spending records between 2000 and 2009. At the same time, state and national surveys have repeatedly shown that large, bipartisan majorities are extremely wary of the role that money plays in judicial elections and believe that financial campaign support buys favorable legal outcomes.
In 2009, the United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. recognized the serious threats to public perceptions of judicial impartiality that arise when judges preside over cases involving their campaign supporters.  In Caperton, the Court disqualified a West Virginia justice from a case in which the CEO of a party had spent $3 million on independent expenditures to elect the justice. The Court concluded that because the spending, which exceeded the total amount spent by all of the justice’s other supporters—and by his campaign committee—created a “serious objective risk of actual bias,” due process required disqualification.
The Court also encouraged states to adopt rigorous disqualification standards to address the conflicts of interest stemming from campaign cash in the courtroom. Nearly three years later, however, the majority of state courts have failed to adopt any reforms that respond to the threats identified in Caperton—despite the fact that spending in judicial elections continues to spiral out of control. In 2009-2010, for example, $16.8 million was spent on television advertising—the most ever spent on judicial television advertising in a non-presidential election cycle.  Outside groups—uncontrolled by the candidates themselves and unaccountable to voters—were responsible for an increasingly large percentage of this spending. During a highly politicized 2011 supreme court election in Wisconsin, special interest groups shattered records for spending on television advertisements during a judicial contest.
When the House of Delegates approved Resolution 107 last summer, it sent a strong signal to state courts that judicial disqualification procedures are crucial to shoring up public confidence in the judiciary. The work of the Committees in proposing amendments to the model code and rules is the crucial next step in providing state courts useful guidance in fashioning needed new rules. We thank the members of the Committees for their extensive and swift attention to this challenge, and we strongly urge adoption of new provisions along the lines of the proposed amendments to the model code and rules.
While we agree with the overall direction of the proposed amendments, there are several areas in which we feel the current draft amendments could be improved. We offer the following observations with an eye toward further improving the very promising draft amendments under consideration, and hope that these comments may assist the Committees as they continue to polish the draft language.
First, although we strongly agree with the general approach reflected in the proposed amendments to Rule 2.11(a)(4), we question the inclusion of the “substantially important” standard used to assess the contributions or support provided to a judge’s campaign. We understand the proposed comment 11 to indicate that this standard is to be interpreted from the point of view of a reasonable person, but we are concerned this may unnecessarily complicate the task of judges assessing putative conflicts under the rule. The rule already calls for an objective inquiry into reasonable perceptions—in requiring an analysis of whether the judge’s impartiality “might reasonably be questioned”—and we question the utility of adding a second “reasonable person” prong within the required analysis. There currently exists a body of precedent that can guide judges in assessing whether impartiality may be reasonably questioned, and we believe decision-making on recusal may be conducted effectively under this standard without resort to an additional inquiry into whether campaign spending was “substantially important.” We believe that in the context of judicial campaign spending, the substantial importance criterion aims to assess effectively the same question as the existing standard—and that adopting a second standard may lead to unnecessary confusion.
Second, we question whether it is advisable to remove the reference to a timely motion from Rule 2.11(a)(4) and to adopt a “rebuttable presumption” that a judge knows the details regarding all spending associated with his or her campaign. Adopting such a presumption will require judges, in every case, to conduct an inquiry into their campaign committees’ finances and operations. Even leaving aside the drain on judicial resources that could result, such a requirement would conflict with judicial ethics rules in some states, which specifically prohibit judges from learning the financial details of their campaign committees.
Adopting a presumption that judges know the financial details of all the spending in their campaigns also presumes knowledge of a category of spending—independent expenditures—which, by definition, judges cannot know the details of, and which may be highly significant in the context of disqualifying conflicts. Independent expenditures as a category of spending in judicial races have increased in recent years, and it was independent expenditures to the tune of $3 million which necessitated recusal in Caperton. Because judges cannot know the extent of any party’s involvement in financing independent expenditures in a judge’s election campaign, we would prefer a rule that, rather than charging judges with knowledge of parties’ spending in judicial campaigns, requires litigants to disclose any relevant spending in the campaigns of a judge or judges hearing the case—whether such spending took the form of direct contributions or independent expenditures.
We believe that the proposed alternative Rule 5.1A provides a useful model for requiring such disclosure by counsel (though we would broaden the rule to require counsel to disclose spending by the party they represent, in addition to spending by counsel and counsel’s firm). And while we understand that there have been some objections to imposing a duty on lawyers to report election spending, we believe that requiring such disclosures would not be unnecessarily burdensome. Rather, such a disclosure requirement would be similar to those already routinely required in federal court, such as the requirement that corporate parties file statements identifying parent corporations or publicly traded companies that own a significant amount of the party’s stock.
Next, we would note that the existing draft amendments are not entirely clear as to the extent that they are intended to reach independent expenditures in judicial campaigns. To the extent that the proposed Rule 2.11(a)(4) contains language referring to spending that is routed through “organizations that contribute to or support the judge’s campaign,” it could be read to reach independent expenditures. (Of course, as noted, to the extent that such organizations may engage in electioneering independent of the judge’s campaign and may not disclose their donors, it is neither realistic nor fair to presume a judge’s familiarity with such spending.) Alternatively, the reference to “indirect contributions” in comment 7 could be construed to reach independent expenditures. In any event, the lack of clarity as to which, if either, of these references is intended to capture independent expenditures suggests that the draft language of the amendments could be strengthened to include explicit reference to independent campaign spending. Helpful model language may be found in new recusal rules recently adopted in Tennessee, which make clear that, as part of the recusal inquiry, “if the support [provided during a judge’s election campaign] is monetary, [judges should assess] whether any distinction between direct contributions or independent expenditures bears on the disqualification question.”
We offer one final observation for the Committee’s consideration, which relates not to the substantive standards for recusal embodied in the Model Code of Judicial Conduct, but rather, to the procedures used to handle recusal motions. While the Committees’ work revising the substantive recusal standards at issue in today’s hearing is a necessary and hugely important aspect of reforming state recusal practice, we would urge the Committees, in conjunction with the proposed amendments, to also call upon state courts to amend their rules of procedure. We believe other states should be urged to follow the example set recently by the Tennessee Supreme Court, whose recently adopted court rules require written orders on recusal motions that state the reasons for the ruling, and provide a process for litigants to obtain de novo review of recusal requests that are denied in the first instance.
One of the most criticized features of the recusal rules in many states is that the judge subject to a recusal motion has the unreviewable last word on whether to step aside. For many, it flies in the face of fundamental notions of disinterested, impartial decision-making to allow judges accused of bias to be the only ones who decide whether or not they are, in fact, subject to disqualification. De novo review of a recusal motion denied in writing promotes public confidence in the judiciary by ensuring that the final disqualification decision is made by a judge or group of judges impartial both in fact and in appearance.
By calling for independent, de novo review of denied recusal motions, the Committees would prompt state courts to take an important step forward in promoting public confidence in their recusal practices. And by producing an even further refined version of the proposed amendments to Rule 2.11(a)(4), the Committees will take a significant step toward ensuring that the public believes decisions are reached based on the facts and the law, not on which side provided the most support to the judge’s campaign.
I thank the Committees again for the opportunity to submit these comments, and would be happy to answer any questions that could help the Committees with the vitally important task at hand.
 See James Sample et al., The New Politics of Judicial Elections 2000-2009: Decade of Change (2010), available at http://www.brennancenter.org/NPJE09.
 See, e.g., Adam Skaggs, Buying Justice: The Impact of Citizens United on Judicial Elections 4-7 (2010) (collecting survey data), available at http://www.brennancenter.org/buying_justice.
 Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).
 Id. at 2265.
 See Judicial Recusal Reform—Two Years After Caperton http://www.brennancenter.org/recusal_after_caperton.
 See Adam Skaggs, et al., The New Politics of Judicial Elections 2009-2010 (2011), available at http://www.brennancenter.org/new_politics_2010.
 See Press Release, Brennan Center for Justice, Special Interest TV Spending Sets Record in Wisconsin (Apr. 5, 2011), available at http://www.brennancenter.org/WI_TV_record.
 TN Code of Judicial Conduct, Rule 2.11(a)(4), cmt. 7.2.