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During its Friday conference, the United States Supreme Court voted to grant certiorari in Caperton v. Massey, the case from West Virginia that asks whether judges should be required to recuse in cases involving significant contributors to their election campaigns.  This case will be watched closely by judges in election states and by all those concerned about the escalating influence of money in judicial selection.  As Gavel Grab reminds us, “three in four Americans believe that campaign contributions can influence a judge’s decisions in court.”

The issues in this case touch a key problem with judicial elections — the role of money in campaigns and whether and how such contributions affect decisions in the courtroom.  The outcome will be interesting not just for any rules it might set down but for how it may change the face of judicial elections.  If new recusal requirements are imposed, will it dramatically change the campaign contribution game? If no requirements are set and recusal is left to the discretion of the individual judge, will even more money start flowing in to judicial candidates?  And what will this do to the public perception of how the courts work?

We will continue to post about this case as the briefs are filed and arguments are held, but we note that the whole issue of recusal in cases involving campaign contributors would be eliminated if we chose our judges a different way.

An editorial in today’s New York Times argues that the United States Supreme Court should take the case of Caperton v. Massey — the West Virginia case that asks whether judges should be required to recuse in cases involving significant campaign contributors. We’ve written about the case here and here. The Times argues that this case “offers the United States Supreme Court a chance to help rescue the fairness of state courts from the sea of special-interest money.”

This case has been on the Court’s agenda to consider during four meetings already this term. No decision on whether to take the case has been announced yet, and the case is again listed as an item on tomorrow’s meeting agenda. The Times urges the Court to take the case:

Judicial neutrality and the appearance of neutrality are basic to due process. The justices would do a great deal to protect essential fairness by making clear that outsize campaign expenditures trigger a duty of recusal on the part of the beneficiaries. Surely there must be the requisite four votes on the Supreme Court for taking the case.

We agree that this case presents very important issues and are waiting to see whether the Court will weigh in. We will post any updates following the Court’s meeting.

We’ve written before about name recognition being an important factor in predicting success in judicial elections.  And this story from the West Virginia campaign trail shows how true it is: “For the first time in history, a tomato-based condiment was the ticket to a seat on the state Supreme Court.”

The Charleston Daily Mail reports on the successful ad campaign run by Supreme Court candidate Menis Ketchum.  Playing on his unusual name, Ketchum ran two ads — one before the primary and one in advance of the general election– where a voter kept calling him “Ketchup.” Ketchum reports that his campaign’s polling reflected dramatic increases in name recognition due to the ads.

Name recognition is very important in these elections.  Indeed, Ketchum himself credits the ad as the most important factor in his election:

I worked hard, I worked continuously. . . . I never stopped. I met a lot of people. But I think the ketchup ad elected me.

What a way to choose judges.

In a report about the current judicial elections in Alabama, The Press-Register notes:

With millions of dollars coursing into the campaign coffers of candidates for Alabama’s appellate courts, an age-old question has resurfaced: What should judges do to remove doubt about their impartiality?

It’s not just reform groups and the public who are concerned about the influence of money in judicial elections. The report explains that some judicial candidates and bar association leaders also believe that steps should be taken to eliminate the perception — and perhaps the reality — that campaign money can affect judicial decision-making.

Some of these folks are talking about whether recusal should be mandated in cases involving campaign donors.  This isn’t a new issue and it’s not unique to Alabama — we’re still waiting to hear whether the United States Supreme Court will take up the West Virginia case of Caperton v. Massey which poses similar questions.

This is just another example demonstrating why money and selecting appellate judges shouldn’t mix.

The New York Times reported this Saturday that the United States Supreme Court is nearing a decision whether to grant certiorari in Caperton v. Massey.  The West Virginia case, which we have covered before, “turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.”  Gavel Grab and Slate offer good analyses of the questions raised by this case.

If the Supreme Court decides to hear Caperton, it could determine when a judge would have to remove him or herself from a case in which a campaign contributor is a party.  Many people question the impartiality of judges hearing cases involving contributors to their own campaigns.

‘If the public believes that judges can be bought,’ said Keith R. Fisher, a lawyer for the bar association [one of several groups that have urged the Supreme Court to hear the case], ‘that is really poisonous and undermines public confidence in an independent judiciary.’

How much campaign money does it take to give the impression that justice is for sale?  When does the appearance of impropriety become so great that a judge must step aside?  Merit Selection eliminates these questions because it allows judges to focus on the law, not on expensive political campaigns.

The problems created by fundraising in judicial elections continue to plague West Virginia.  Gavel Grab has alerted us to a report in The West Virginia Record detailing that law firms involved in a case accepted for review by the Supreme Court are coming in to two of the three candidates running for Supreme Court.

The case involves a $400 million verdict against Dupont for alleged pollution.  The campaign donors are two of the law firms representing the plaintiffs.

Nothing prohibits such donations or directly requires judges to recuse in cases in which donors are involved.  That’s one of the biggest problems with electing judges.

The Herald-Dispatch recently editorialized about West Virginia’s judicial election system and the problems inherent in electing judges.  The editorial specifically cited the issue of fundraising and campaign contributions:

The number one issue the five members of the West Virginia Supreme Court of Appeals must deal with is the integrity of the court. That integrity has been battered in recent years. The amount of money spent on Supreme Court races poses perhaps the greatest threat to the high court’s integrity.

The editorial noted that even the three candidates running for the Supreme Court vacancy believe there are problems with the current electoral process.  Without identifying a favored solution, the editorial argues that the current system is broken and change should be considered:

Even people who like the present system must admit that the ever-increasing amount of money being spent on judicial elections is a problem. Money allows an unknown candidate to become known and have a fighting chance in an election, but too much money raises the perception that campaign donations could influence a justice’s decisions, particularly when that justice plans to run for re-election. . . . After the election, a fresh look is needed at what can be done to improve the way justices are selected and in the process improve the court’s integrity.

We hope West Virginians will get a chance to weigh in on whether the current system is working for them and whether they want to find a better way to select judges.

This past weekend, the Pittsburgh Post-Gazette article addressed the concerns about the effect of large  contributions to judicial campaigns and the public perception that justice is for sale.  The context was the ongoing case involving West Virginina judicial elections, Caperton v. Massey,

The case, which we have covered before, revolves around whether the Due Process Clause of the Fourteenth Amendment was violated by a judge’s refusal to recuse himself from a case involving a major campaign contributor.  It illustrates the problems with the recusal system, which relies on judges to voluntarily step aside when their impartiality might reasonably be questioned.  Different judges interpret the recusal guidelines differently: some feel that only evidence of bias should disqualify a judge, while others believe that “the mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts.”  (Gavel Grab has more about recusal and Caperton v. Massey.)

The article offers a thorough history of the case, a survey of how much it costs to run a judicial campaign in various states and a primer on past recusal cases.  Explaining that the parties are waiting to hear whether the United States Supreme Court will take the case, the article quotes Mr. Fawcett, the lawyer representing Mr. Caperton: “As soon as people start to think there’s a possibility justices can be affected by campaign contributions, quickly you’re at a point where the pillars of the system can collapse.”

We will be watching the case and keeping you posted on its status.  But this is another good reminder of what electing appellate judges in expensive partisan campaigns just doesn’t make sense.

A petition for certiorari has been filed in Caperton v. Massey – the case arising out of the mess of recent West Virginia judicial election campaigns. We’ve written about the situation stemming from the refusal of a justice to recuse in a case involving a significant campaign contributor. The case has made it through the West Virginia courts, and a high-powered legal team led by former Solicitor General Ted Olsen is appealing to the U.S. Supreme Court. The main question presented for the Court’s consideration is whether a judge’s failure to recuse in a case involving a major campaign contributor violates the Due Process Clause of the Fourteenth Amendment.

Several amicus briefs have been filed in support of the petition, including some filed by our national partners, the Brennan Center for Justice, the Committee for Economic Development and the American Bar Association. Gavel Grab has a post about the various briefs here.

This case presents an important opportunity for the high court to set standards for when judges should recuse in cases involving major campaign donors, and we’re eager to see what happens. Of course, we think the whole problem could be avoided by getting judges out of the fundraising business through the adoption of Merit Selection.

In a feature on campaign financing, Chicago Tribune correspondent Tim Jones notes that special interest groups are spending millions of dollars on state Supreme Court races, “with the intent of electing justices who will advance or protect their financial interests.” Jones summarizes the fallout from increasingly expensive, partisan contests in Wisconsin, West Virginia and Illinois, and discusses the effect this dramatically increased spending has on the appearance of judicial impartiality.

Nationally, spending for Supreme Court races was $165 million during the 1999-2007 election cycles, up from $62 million over the previous decade, according to the Justice at Stake Campaign. There has long been discomfort in legal circles about judges seeking election to the bench, given the potential appearance of judges being beholden to campaign contributors with matters before the court. As the number of multimillion-dollar court campaigns grow, those fears are taking shape.

As contributions to judicial campaigns increase, fundraising prowess is quickly becoming a critical skill for an aspiring judge. Because the bulk of these campaign funds come from lawyers and organizations that often litigate in state courts, the public is left to wonder if campaign cash has an influence on judicial rulings. It’s time to eliminate fundraising and campaign contributions from the judicial selection process. The best way to do that is to switch to Merit Selection.