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Earlier this week, Pennsylvanians for Modern Courts, along with 27 national, state and local reform groups, filed an amicus brief with the United States Supreme Court in the case of Caperton v. Massey. The question raised in this case is whether the due process clause requires judges in certain situations to recuse from cases involving campaign contributors. The brief argues that the essence of due process is a fair and impartial judge:

[P]recedent, and the history of the Due Process Clause, require that the Court find that judicial campaign contributions, in certain circumstances, create the reality or appearance of judicial bias in violation of the Due Process Clause.

The brief discusses the history of judicial selection and notes that because of the increasing expense of elections and the growing importance of campaign contributions “Judicial elections have created a crisis in public confidence.” The brief discusses the evolution of efforts in the states and nationally to address this crisis and improve the judicial selection process. Merit Selection was one of the reforms highlighted.

We are proud to be part of this brief and are eager to see how the Court will address this critical question. Keep checking for updates. To read more about this brief, visit Text and History; information about all the amici briefs filed in the case is available in this press release from Justice At Stake and the Brennan Center.

The fact that the United States Supreme Court has decided to hear Caperton v. Massey — the West Virginia case involving campaign contributors and recusal of judges — is of course big news to lawyers and judges.  But it’s also important to members of the public who come to the courts to settle disputes.  Here’s what Hugh Caperton, plaintiff in the case, told The Charleston Gazette about the issue of campaign contributions:

“In this country, money has begun to pervade and permeate every election that’s held. And I agree that it’s the right of each citizen to support their candidate. But you can’t have Supreme Court seats being propped up by millions of dollars from one individual or group,” he said. “It makes the appearance of impropriety so great that normal citizens like myself lose faith in the judicial system.”

Our justice system is based on the public’s trust and confidence that the judges will follow the law and apply it to the facts presented.  When people worry that campaign contributions might influence a judge’s decisions, that confidence is undermined.  We can’t afford that.

An editorial in today’s New York Times argues that the United States Supreme Court should take the case of Caperton v. Massey — the West Virginia case that asks whether judges should be required to recuse in cases involving significant campaign contributors. We’ve written about the case here and here. The Times argues that this case “offers the United States Supreme Court a chance to help rescue the fairness of state courts from the sea of special-interest money.”

This case has been on the Court’s agenda to consider during four meetings already this term. No decision on whether to take the case has been announced yet, and the case is again listed as an item on tomorrow’s meeting agenda. The Times urges the Court to take the case:

Judicial neutrality and the appearance of neutrality are basic to due process. The justices would do a great deal to protect essential fairness by making clear that outsize campaign expenditures trigger a duty of recusal on the part of the beneficiaries. Surely there must be the requisite four votes on the Supreme Court for taking the case.

We agree that this case presents very important issues and are waiting to see whether the Court will weigh in. We will post any updates following the Court’s meeting.

In a report about the current judicial elections in Alabama, The Press-Register notes:

With millions of dollars coursing into the campaign coffers of candidates for Alabama’s appellate courts, an age-old question has resurfaced: What should judges do to remove doubt about their impartiality?

It’s not just reform groups and the public who are concerned about the influence of money in judicial elections. The report explains that some judicial candidates and bar association leaders also believe that steps should be taken to eliminate the perception — and perhaps the reality — that campaign money can affect judicial decision-making.

Some of these folks are talking about whether recusal should be mandated in cases involving campaign donors.  This isn’t a new issue and it’s not unique to Alabama — we’re still waiting to hear whether the United States Supreme Court will take up the West Virginia case of Caperton v. Massey which poses similar questions.

This is just another example demonstrating why money and selecting appellate judges shouldn’t mix.

The New York Times reported this Saturday that the United States Supreme Court is nearing a decision whether to grant certiorari in Caperton v. Massey.  The West Virginia case, which we have covered before, “turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.”  Gavel Grab and Slate offer good analyses of the questions raised by this case.

If the Supreme Court decides to hear Caperton, it could determine when a judge would have to remove him or herself from a case in which a campaign contributor is a party.  Many people question the impartiality of judges hearing cases involving contributors to their own campaigns.

‘If the public believes that judges can be bought,’ said Keith R. Fisher, a lawyer for the bar association [one of several groups that have urged the Supreme Court to hear the case], ‘that is really poisonous and undermines public confidence in an independent judiciary.’

How much campaign money does it take to give the impression that justice is for sale?  When does the appearance of impropriety become so great that a judge must step aside?  Merit Selection eliminates these questions because it allows judges to focus on the law, not on expensive political campaigns.

This past weekend, the Pittsburgh Post-Gazette article addressed the concerns about the effect of large  contributions to judicial campaigns and the public perception that justice is for sale.  The context was the ongoing case involving West Virginina judicial elections, Caperton v. Massey,

The case, which we have covered before, revolves around whether the Due Process Clause of the Fourteenth Amendment was violated by a judge’s refusal to recuse himself from a case involving a major campaign contributor.  It illustrates the problems with the recusal system, which relies on judges to voluntarily step aside when their impartiality might reasonably be questioned.  Different judges interpret the recusal guidelines differently: some feel that only evidence of bias should disqualify a judge, while others believe that “the mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts.”  (Gavel Grab has more about recusal and Caperton v. Massey.)

The article offers a thorough history of the case, a survey of how much it costs to run a judicial campaign in various states and a primer on past recusal cases.  Explaining that the parties are waiting to hear whether the United States Supreme Court will take the case, the article quotes Mr. Fawcett, the lawyer representing Mr. Caperton: “As soon as people start to think there’s a possibility justices can be affected by campaign contributions, quickly you’re at a point where the pillars of the system can collapse.”

We will be watching the case and keeping you posted on its status.  But this is another good reminder of what electing appellate judges in expensive partisan campaigns just doesn’t make sense.

A petition for certiorari has been filed in Caperton v. Massey – the case arising out of the mess of recent West Virginia judicial election campaigns. We’ve written about the situation stemming from the refusal of a justice to recuse in a case involving a significant campaign contributor. The case has made it through the West Virginia courts, and a high-powered legal team led by former Solicitor General Ted Olsen is appealing to the U.S. Supreme Court. The main question presented for the Court’s consideration is whether a judge’s failure to recuse in a case involving a major campaign contributor violates the Due Process Clause of the Fourteenth Amendment.

Several amicus briefs have been filed in support of the petition, including some filed by our national partners, the Brennan Center for Justice, the Committee for Economic Development and the American Bar Association. Gavel Grab has a post about the various briefs here.

This case presents an important opportunity for the high court to set standards for when judges should recuse in cases involving major campaign donors, and we’re eager to see what happens. Of course, we think the whole problem could be avoided by getting judges out of the fundraising business through the adoption of Merit Selection.