Litigation

Revised Study Looks at Campaign Cash, Bias Risk

By Peter Hardin

Vernon Palmer, a Tulane University Law School professor, has done research on the influence of campaign contributions on the Louisiana Supreme Court and has republished, with corrections, his findings from an earlier law review article.

Palmer’s new article is entitled “The Recusal of American Judges in the Post-Caperton Era: An Empirical Assessment of the Risk of Actual Bias in Decisions Involving Campaign Contributors.” A link to an abstract was made available by Election Law blog.

A U.S. Supreme Court ruling in 2009 drew national attention to the importance of judges stepping aside from hearing a case involving a major campaign benefactor. In that ruling, Caperton v. Massey, the Supreme Court declared that campaign spending can damage a litigant?s right to a fair trial, and it required a West Virginia Supreme Court justice to disqualify himself from an appeal.

Palmer (photo) writes in his abstract that his revised article has “striking insights about the risks involved in unrecused voting.”

He writes in a personal statement about his new study that its calculations were “independently confirmed and replicated by an outside research institute.” He continues, “Thus the present study rests not only on a strong foundation but it reaffirms the general finding that the Court’s refusal to recuse itself in campaign contributor situations is a threat to the court’s own impartiality and reveals a risk of actual bias.”  Palmer goes on to summarize the findings:

“Among other things they show the Court, as a whole, votes for its contributors on average about 65% of the time (in nearly two out of three cases); individually, certain justices greatly exceed 65%. One Justice voted for his contributors’ side of the case 100% of the time. That percentage reflects a serious risk of actual bias. There is also evidence of similar risk when the Court faced contributors on both sides of the case. The voting of certain Justices was anomalous. They sharply favored the larger of the two contributors, regardless of the side he was on, and though it contrasted with their general voting tendency when no money was involved.

“The expanded investigation also brings to light, for the first time, detailed data about the occult and little-known practice of accepting campaign contributions from litigants in cases under deliberation. The data reveal that a number of Justices vote for the position of their sub judice contributors 100% of the time. This has an appearance of impropriety and also reflects a significant risk of actual bias.”

Palmer notes that his previous study was “sharply criticized by the Justices who pointed out a number of errors in the data and called for corrections and an apology.”

In 2008, Tulane’s dean wrote an apology letter to the Louisiana Supreme Court over errors in the first article. ?Because of the miscalculation in the underlying data,? wrote the dean, ?the reliability of some or all of the authors? conclusions in the study as published has been called into question.? The dean also said that with mistakes corrected, the study’s findings, broadly speaking, remained the same, according to a Wall Street Journal article at the time.

Full post as published by The Gavel on February 15, 2011 (boomark / email).