Litigation

O?Connor: Contributions ?Can Poison the System?

By Charlie Hall

In an event that could hardly have been more timely, the latest Sandra Day O’Connor conference examined the likely impact on courts of two blockbuster Supreme Court cases: Caperton v. Massey and Citizens United v. Federal Election Commission.

Speaking after separate panels discussed the two cases, O’Connor warned that last week’s Citizens United decision threatened a worsening spending war over state courts, saying runaway spending “can poison the system.” Speaking at Georgetown University Law School, O’Connor told the gathering:

?If you?re a litigant appearing before a judge, it makes sense to invest in that judge?s campaign. No states can possibly benefit form having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.?

?[After Citizens United]We can anticipate labor unions trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.?

?These two cases should be a warning to states that still choose judges by popular elections. …These states should at least pause and think whether some change is needed. The time is now for opponents of merit selection to do a little soul-searching.?

In the first panel, on the Caperton case, Georgetown professor-emeritus Roy Schotland said that predictions of a flood of Caperton motions to force judges off of cases had failed to occur, saying that only 37 cases nationally had cited Caperton.  He also called for greatly strengthening financial disclosure laws, especially for independent expenditures.

Fellow panelist Pamela Karlan, Stanford University law professor, predicted that Citizens United would drive more money into independent groups, which the court declared exempt from any fund-raising limits.

Bert Brandenburg, executive director of Justice at Stake, said state courts had been slow to revise recusal rules following Caperton, noting  two widely different approaches taken in Michigan and Wisconsin. He called for a change in the “culture of judging,” saying,  “Recusal is a battle for the soul of the judiciary 20-30 years from now.”

Brandenburg quoted Indiana University Law Professor Charles Geyh, saying, “Both in appearance and in fact, litigants are entitled to a process that is above suspicion. The Constitution guarantees due process.”

In the second panel, Jan Baran, of the Center for Competitive Politics, and Bradley Smith, former Federal Election Commissioner, both said the effects of Citizens United would be relatively limited because of previous Supreme Court rulings.

Fred Wertheimer, president of Democracy 21, disagreed, warning that opening state and federal elections to unlimited corporate spending could undermine the election process. “I see this as an enormous transfer of power from citizens to corporations. It will give lobbyists a potent weapon in carrying out their agenda.”

H. Thomas Wells Jr., former president of the American Bar Association, cited the 2008 Supreme Court election in Alabama to outline the dangers of special-interest spending. Noting that a Virginia-based group, the Center for Individual Freedom, spent about $1 million on behalf of Judge Greg Shaw, who narrowly won, Wells said it is essential for the legal process that all spending on judicial elections be publicly disclosed.

“It’s impossible to ask a judge to recuse if you don’t know where the money came from,” said Wells, who is from Birmingham, Ala.

Full post as published by The Gavel on January 26, 2010 (boomark / email).