Last week, I blogged on the flurry of recusal motions directed at a justice on the Wisconsin Supreme Court based upon his "tough on crime" campaign in general and, in particular, one ad that was, even by standards of the genre, over the top. (My contemporaneous criticism of the ad was cited in briefs in support of the recusal motion.)
For some, these motions have been an exercise in judge shopping. The State Public Defenders' office urged the defense bar to file recusal motions against conservative justices, explicitly reasoning that they were unlikely to vote to uphold a defendant's claim anyway. No recusal motions were filed in response to the recent reelection campaign of the Chief Justice in which she ran ads in which a uniformed police officer driving in a squad car pronounced her "law enforcement's ally."
The Court has responded to these motions in two ways. First, by a 4-3 vote, it amended the state's Judicial Code to provide that a lawful campaign contributions or independent expenditures do not, in and of themselves, give rise to a duty of recusal. Of course, we know, from Caperton, that, in rare and unusual circumstances, there can be lawful campaign support that gives rise to a duty of recusal under the Due Process Clause, but, presumably, the justices will not interpret the rule to suggest otherwise.
Second, in a case called State v. Allen, it deadlocked on whether to deny the motion to recuse Justice Gableman that was filed in that case. Three justices would have denied the motion. Three wanted more briefing. As a result, the motion was not granted and Justice Gableman will remain on the case.
The three justices who would have denied the motion held that the Court lacked the power to force a peer justice from a case, although they also said that Allen's motion was facially invalid. In their view, an allegation of generalized bias against a group other than a protected class cannot give rise to a duty of recusal under the Due Process Clause.
The first conclusion may rest uneasily with Caperton in that it implies that the state's Supreme Court cannot provide a remedy to a violation of Due Process. The second conclusion - or something like it - is going to be necessary if Caperton does not become a vehicle for judge shopping. I have an op ed on the matter in today's Milwaukee Journal Sentinel and am completing a scholarly article.
It will be interesting to see how Caperton plays out in other states with an elected high court. These elections almost always involve "tough on crime" campaigns. When more liberal candidates challenge conservative incumbents, they may also involve an "anti-business" populism. An overly generous reading of Caperton will create a target rich environment for lawyers attempting to gaim a more favorable tribunal.
For those pushing aggressive recusal standards, the end game may be a move away from the election of judges or a return to campaigns that are largely concerned with a candidate's resume and endorsements and that are, in the words of one observer, "about as exciting as a game of checkers played by mail." Some commentators have, in fact, expressly pointed to recusal as an antidote to the United State Supreme Court's decision in Republican Party v. White, finding a robust right to free expression in judicial campaigns.