By Peter Scheer
In America, a judge ordinarily may not take a “gift” of money from a person or company appearing before him in a legal case. Such a brazen assault on judicial independence is plainly unethical and potentially criminal.
Suppose, however, we alter the facts slightly so that the money is offered as a contribution to the judge’s reelection campaign. A nonlawyer would say, wisely, that that is a distinction without a difference: a bribe is still a bribe, even when it goes into a judge’s campaign war chest. But in the strangely counterintuitive world of the law, this distinction is crucial—so much so that the issue of a judge’s receipt of campaign contributions from litigants has gone all the way to the US Supreme Court, which this week heard arguments in the case, Caperton v. Massey Coal.
The Caperton case involves the CEO of a corporation, a party to a West Virginia Supreme Court appeal, who made contributions and expenditures totaling $3 million in support of a candidate for a Supreme Court judgeship who, following his election, voted with the court majority in favor of the CEO’s company. The US Supreme Court is considering whether principles of Due Process should have required the newly elected justice to recuse himself from participating in the appeal.
However the US Supreme Court decides the issue, the Caperton case highlights the hypocrisy of judicial ethics. State ethical rules, including California’s, obsessively admonish judges to avoid conduct that gives even the appearance of a conflict-of-interest. But when it comes to judicial elections, the same ethics rules self-servingly bless financial dealings, benefiting judges, that constitute an actual conflict-of-interest of the most blatant kind.
In fairness, this ethical blindspot makes many judges uncomfortable. In fact, twenty-seven former chief justices and current justices of 19 state supreme courts filed an amicus brief in the Caperton case urging the high Court to rule that the West Virginia candidate-turned-judge should have stepped aside.
Few state judges relish raising money for their election campaigns. And few would disagree that judicial independence is undermined by the flow of contributions into judicial campaign coffers. Judges nonetheless defend fundraising as a necessary byproduct of an elected judiciary. Most probably would prefer to replace elective judgeships with appointed judgeships, as in the federal system. Many judges would support government financing of judicial elections as a way to avoid conflicts-of-interest.
Those reforms, although desirable, are not in the cards in most states. Nonetheless, many state supreme courts already have the power to revise their ethics rules in ways that would greatly diminish the flow of campaign cash to judges, with all of its attendant problems.
By far the biggest share of campaign contributions to judges are made by the group that has the greatest interest in the outcome of judicial elections–namely, lawyers. Under current ethics rules in California and elsewhere, lawyers may contribute to an incumbent judge’s (or judicial candidate’s) campaign on Monday and appear in court before the same judge for a hearing on Friday. Judges in California are urged to post the names of their lawyer-donors in their courtrooms, but few do (and, in any event, disclosure doesn’t cure the conflict.)
This system makes no sense. State supreme courts should revise their ethics rules to forbid lawyers–and their colleagues in law firms–from practicing before a judge to whom they have contributed financially for, say, one year from the date of the contribution. Such a rule would, as a practical matter, cause campaign contributions in judicial elections to dry up–which is precisely the point.
Most lawyers actually would welcome this development, since they would no longer be under pressure for contributions they never wanted to make in the first place. Most judges would also welcome the change since the falloff in contributions would affect judicial candidates more or less equally. Without funds to buy expensive mailers and advertising, they would be forced to campaign the old fashioned way: by meeting with voters in small gatherings and describing their qualifications.
To those who would resist this reform, it is worth asking the question, what do lawyers expect for their campaign contributions to judges? Some lawyers genuinely wish only to show support for a friend or colleague. They will continue to do so, since the preclusion of practice before the judge will be of no consequence to them. Other lawyers would say that, as in the case of contributions to political representatives, they are purchasing “access, not influence.” Except that in the case of judges, access–aka ex parte contacts–is illegal.
It’s time judges stopped wringing their hands about the ethical sleeze of judicial elections and adopt rules to take money out of the selection process. This they can do by barring lawyers from practicing before judges to whom they have contributed.
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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition. www.cfac.org