Litigation

Recusal Debate and the First Amendment

By Alexandra Saaverda

Amanda Bronstad writes an article for the National Law Journal, titled “Stage Set for Litigation Over Judicial Recusal”.  The aftermath continues for the Caperton v. Massey ruling as Bronstad discusses both sides of the recusal debate.  She states that the Court’s ruling:

“prompted the American Bar Association and several states to consider stricter rules to help elected judges decide whether to step down from cases due to conflicts of interest born of campaign contributions”

However, Bronstad expresses concern from some, of eventual violation of the First Amendment, which is a freedom of speech issue that seems to be “rolled into being able to contribute”, said Joe Turnham, chairman for the Alabama Democratic Party.  The article references the 2002 Republican Party of Minnesota v. White case, which found a violation of the First Amendment.  William K. Weisenberg, chairman of the American Bar Association, responded with “…we have to always be sensitive to First Amendment issues” to the argument, saying furthermore, “we expect more court cases to try to define what the Caperton case is about.”

The article also represents those who argue that more guidance from the Supreme Court’s ruling is needed.  Interest groups need to know how much they can give without putting judges in a position where a judge might be removed from a case.  Those parameters are now left to each individual state.

For further information on the First Amendment in relation to the Caperton v. Massey case, see: Previous Gavel Grab blog

Mike Lawrence published “Big Money Undercuts Judicial Credibility” in the Chicago Tribune on June 23rd.  Lawrence makes the point that a Judge’s campaign consists of a long list of dont’s with very few do’s.  A judge-in-running cannot make promises, appear biased, disclose how he or she would rule in a courtroom, and essentially should not know who contributed to his or her campaign, among other prohibitions, all the while acting like a true candidate.

  Lawrence goes through the steps of campaigning through the struggles in the eyes of Judges, putting into perspective how many complicated restrictions there are.  Lawrence, an advocate for more dramatic reform himself, says he believes that even with public financing and limits on direct contributions that interest groups will still remain potent.  However, he does say that safeguards do exist that would restore public confidence in the courts.

For more information, see: Previous GavelGrab blogs

Full post as published by The Gavel on June 24, 2009 (boomark / email).