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Wednesday, March 28, 2012


This will be a continuing piece about the issues we as a country and profession face with the increasing amount of money being poured into judicial races across the country.  

The amount of money being spent nationally on high-court candidates has more than doubled in the last ten years.  From 2000-2009, nearly $207 million was raised and spent on these elections, compared to $83 million from 1990-1999.  Illinois, which has had its fair share of "questionable" elections and candidates, was the fifth highest in the nation in regards to money spent on high court elections with special interest groups spending $20.6 million.  However, this is not too shocking when you compare this to Wisconsin, where nearly $15 million has been spent on high court elections since 2007.  

This raises a major problem for judges - in order to win elections, they must raise money from parties who may potentially appear before them in court.  This leads to the most depressing issue of all - 75% of Americans now believe campaign cash affects judges' decisions.  In a Republic such as ours, where judges are supposed to be an unbiased stalwart of truth, this statistic is most disturbing.  All of this is shocking given the U.S. Supreme Court's decision two years ago in Caperton v. Massey.  In Caperton, the U.S. Supreme Court ruled that a West Virginia justice should have recused himself from hearing a case involving a coal company whose CEO donated more than $3 million to help elect the justice.  This decision was a wake-up call for states to redefine and re-evaluate their rules for when a judge should recuse him or herself.  The hope was that this decision would lead states to make more clear and ethically sound rules for when a judge must recuse him or herself.  

However, this was not the case.  In Wisconsin, who was in the midst of a major judicial squabble (not based on judicial opinions, but on accused acts of violence between two Wisconsin Supreme Court justices), unfortunately, loosened and relaxed its judicial recusal standards.  It adopted language, ironically, written by a special interest group, which had spent millions of dollars on Wisconsin Supreme Court elections.  The new Wisconsin rules state that, by itself, a legal campaign contribution does not require recusal by a judge.  It doesn't matter apparently the appearance and inference of bias, which may violate due process.  

The ABA has urged states to update their recusal rules to help alleviate the appearance of bias and impropriety.  It also has called for independent reviews of recusal requests, which I believe is one of the best ideas yet.  Michigan has so far been the only state to adopt the ABA's guidance.  

More to come in the next few weeks.  However, we as a country and a legal profession, need to make sure that the people do not lose faith in the courts and the legal process.  Changes need to be made.  Since Citizen's United, the options may be fewer, but something needs to be done. 

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