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Initial thoughts on Caperton

The political contribution in Caperton certainly was unseemly. And it was on the outer bound of what we typically see in contested judicial elections. But I question whether it was as "extraordinary" as Justice Kennedy and the justices in the majority seemed to think. For instance, the following part of Chief Justice Roberts's dissent caught my eye: "'Consumers for Justice'--an independent group that received large contributions from the plaintiffs' bar--spent approximately $2 million in this race."

Such oversized contributions from plaintiffs' lawyers in judicial campaigns are the norm, rather than the exception. And it is quite often the case that a single lawyer or firm will dominate such expenditures. For instance, in the Center for Legal Policy's Trial Lawyers, Inc.: Illinois report, we noted that of the $1.3 million raised/spent by the so-called "Justice for All" PAC erected to support the election of Gordon Maag to the state supreme court, "Madison County asbestos lawyer Randy Bono gave Justice for All almost $400,000, while the law firm with which he's affiliated, Simmons Cooper, chipped in $275,000." All told, the Simmons Cooper firm poured over $1 million into supporting Maag's campaign.

Had Maag been elected, would he have had to recuse himself in all cases involving Simmons Cooper? If not, why not?

Surely, a lawyer could come up with a possible distinction. But would such distinctions really be compelling? Is the answer perhaps that Simmons Cooper has multiple matters before the courts, such that independent expenditures on judicial campaigns are perversely disqualifying in inverse proportion to one's litigiousness? Or perhaps the answer is that, however much Simmons Cooper gave to Maag, its share of total expenditures was less than that West Virginia contributor Blankenship's, who gave "approximately two-thirds" of the money given to the "And for the Sake of the Kids" PAC? In the latter case, we must conclude that one's ability to compromise a judge for purposes of the U.S. Constitution is dependant on one's political fundraising prowess, so that a complete defense against constitutional violation might emanate from one's effective use of direct mail.

I think Justice Scalia has it right:

Divinely inspired text may contain the answers to all earthly questions, but the DueProcess Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed--which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.