Litigation

Scholar: Caperton Has Fueled Real Reforms

By Peter Hardin

The Supreme Court’s landmark Caperton v. Massey decision in 2009 already has led to improvements in protecting courts from the influence of campaign cash, according to a legal scholar’s draft law review article.

James Sample of the Hofstra School of Law (photo), and formerly of the Brennan Center for Justice, takes a look at state court reform developments in the year since the high court decision.

Sample’s draft article is entitled, “Court Reform Enters the Post-Caperton Era” (thanks to Rick Hasen’s Election Law blog for the tip.) Sample discusses reform efforts involving judicial recusal and public financing, chiefly in Wisconsin, Michigan and West Virginia (all of which Gavel Grab has tracked closely: click here for Wisconsin, here for Michigan or here for West Virginia).

Here are excerpts from Sample’s conclusions:

“The groundbreaking recusal rule adopted by the Michigan Supreme Court…as well as the public financing system signed into law in Wisconsin, have the potential to mitigate the appearance of money influencing the judiciary in the courts of those states.

“The initial recommendations of West Virginia?s Independent Commission on Judicial Reform, including the pilot program for public financing of its high court campaigns, are quite modest, but plainly reflect a chastened view and a renewed commitment to reverse what it bluntly described as the ‘erosion of the public?s confidence in the State?s justice system as a neutral and unbiased arbiter.’

“Finally, Caperton is rejuvenating efforts in some states to at least reconsider whether, given the spiraling costs of judicial elections and the commensurate conflicts created by expensive campaigns, carefully crafted appointive systems might better serve the public.

“In sum, following Caperton, states are taking next steps to protect the differences that make the judiciary distinct, and the early returns reflect cautious and mixed, but mostly positive, results.”

Sample was a co-author of “The New Politics of Judicial Elections 2006,” published by Justice at Stake, the Brennan Center and the National Institute on Money in State Politics. He is lead author of an upcoming “New Politics” report on judicial elections in the past decade.

In the Caperton case, a coal company executive spent $3 million to  elect a West Virginia Supreme Court justice. The U.S. Supreme Court later said it was a violation of due process rights for the justice to hear an appeal by the coal company. You can read more about Caperton in Gavel Grab. You also can visit Justice at Stake?s online Caperton v. Massey resource page, which includes a JAS amicus brief to the high court.

Full post as published by The Gavel on May 29, 2010 (boomark / email).