Elected Judges Recusal Standard?

The American Democracy is founded upon the principle of separation of powers. At the federal level, this is accomplished, of course by the three co-equal branches of government. The two elected branches, the Presidency and Congress, are balanced by an unelected judiciary, which is appointed in combination by the Presidenct and Congress. We are all familiar with the arguments against unelected judges ruling from the bench.

Yet, at the state and local level, not all judges are unelected. Indeed, in many states, such as Ohio, even the state supreme court judges are popularly elected. Arguably, such judges would be more responsive to the people, in touch with the latest concerns of the electorate, and thus more likely to be, for lack of a better term, more judicious in their rulings. But not all is good with elected judges.

If a judge is elected, she must run for election, which of course takes money. Even with campaign finance laws that limit contributions, some judges receive massive amounts of money from lawyers that will appear before them, corporations in the state, and other interest groups who care about who sits on the bench. And here is the eternal question, do such fundraising activities and being beholden to the interests that helped get you elected, affect the judges necessary ability to remain impartial, particularly when campaign contributors appear in your court room?

Such an issue is the topic of a recent posting at the SCOTUS blog.

Should an elected judge, who accepts large campaign donations, sit on a case that directly affects the financial or business interests of the donors and their associates? Put as an ethical question, the answer would seem to be obvious: No. But the Supreme Court is being asked to rule on that question as a constitutional issue: does the due process clause create a duty to recuse in such a situation?

snip

The new question of recusal of elected judges is raised explicitly in a newly filed case from Illinois, involving a justice of that state's Supreme Court, and a ruling in which he cast one of the deciding votes that scuttled a huge verdict against a private insurance company -- a company closely linked to major campaign donations to that justice. The case is Avery, et al., v. State Farm Mutual Automobile Insurance Co. (Filed on Tuesday, it does not yet have an assigned docket number. It probably arrived too late to be decided this Term, if granted.)

Here is the specific question the Avery petition poses: "May a judge who receives more than $1 million in direct and indirect campaign contributions from a party and its supporters, while that party's case is pending, cast the deciding vote in that party's favor, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution?"

The petition concedes that the Court "has never directly addressed the requirements of recusal under the Fourteenth Amendment's Due Process Clause as a result of the appearance of impropriety and the effect on public perceptions of the integrity of the ocurts caused by large campaign contributions to judicial candidates."

Here we stand, at the cusp between conflict of interest and Constitutional law. I have long argued that the thought of an elected official being "bought" by a campaign contribution is utterly laughable. But recusal is another matter all together. Courts have a method in which a judge should recuse herself if she has a financial conflict of interest, such as being a stockholder in a company with a case before her court. But should the same duty to recuse also hold true for campaign contributors? What about the case of the Ohio Supreme Court, where all judges are elected and all could have received a contribution from a particularly large contributor with a case that could come before it? How and where do we draw the line?

The Avery case has implications as far as state's rights as well. Let us assume the Supreme Court takes the case(not a forgone conclusion, although given the uniqueness of the question, a distinct possibility). The Court may rule that state judges have to, by the due process clause, recuse themselves from any case involving a campaign contributor. The resulting chaos could only be effectively avoided by making all judges appointed and not elected. In essence, teh Supreme Court would be saying the states, do it our way or you will have to figure out how to handle the potential problems of judges have to recuse themselves from so many cases.

I, for one, don't believe it is necessarily a conflict of interest for a judge to hear the case of a campaign contributor. But I can see the opposing argument and they have a compelling case. With all the problems inherent in a judicial election, I am surprised that such elections continue in an age where campaigns are expensive, requiring more donors than in the past and where we live in a society where lawsuits are commonplace and becoming more so.

I am sure that SCOTUSblog will stay on top of the developing case.