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Monday, June 8, 2009

Best judges money can buy

Judges shouldn't rule on cases involving people who gave them lots of money to get elected, the Supreme Court ruled today, in Caperton v. A.T. Massey Coal (08-22).

The vote was 5-4, with Justice Anthony Kennedy writing for the liberal majority, citing the 14th Amendment's due process clause (which protects citizens from government abuse), while conservatives led by Chief Justice John Roberts dissented, complaining the opinion will "erode public confidence in the courts" because it'll be tough to enforce. Opinion and dissent here. Bloomberg story here.

We wondered about the impact on Pennsylvania, which is one of just six states that "elect all levels of judges in partisan elections," says Lynn A. Marks, executive director of nonpartisan court-reform group Pennsylvanians for Modern Courts. (The others are Alabama, Illinois, Louisiana, Texas and West Virginia.)

Here's a statement from Robert L. Byer, former Commonwealth Court Judge and current head of the appellate practice in Duane Morris's trial group, via our Inquirer colleague Chris Mondics:

"The Supreme Court’s Caperton decision is a narrow ruling concerning an extreme situation, but it highlights the fundamental inconsistency between selecting judges in partisan elections and the principle, required by constitutional due process, that judges not only must be impartial, but must maintain an appearance of impartiality. 

"Under this decision, when a level of financial or political support for a judicial candidate reaches a level that it reasonably creates an appearance of bias, that judge must recuse.  Litigants should not have to worry that a judge’s decision might in some respect be motivated by political considerations, rather than by an impartial application of the law to the evidence. 

"Because the Caperton decision is narrow, it does not establish a line beyond which political or financial support or opposition to a candidate will require recusal.  The result should be that judges will err on the side of recusal, and will not become involved in cases involving parties or lawyers who have significant financial or other involvement in the election process involving that judge. 

"This should take the incentive out of providing major support or opposition for judicial candidates upon an attempt to gain advantage in litigation. (Emphasis added.)

"I hope that the Caperton decision ultimately will remove the opposition to Pennsylvania and other states abolishing partisan elections as the method of selecting judges.  That opposition has come largely from interest groups who use political contributions, including contributions to so-called '527 organizations,' in a manner that is inconsistent with the Due Process principle that the Supreme Court now has vindicated.  That should eliminate much of the incentive."

Byer says it's rare for Pennsylvania judges to recuse themselves because of political donations -- but he predicts the Caperton case will make it more common. 

"The best solution is to get judges out of the fundraising business altogether and end the poisonous campaign contribution game by changing to merit selection," says Marks.
Posted by Joseph N. DiStefano @ 1:31 PM  Permalink | Post a comment
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About Joseph N. DiStefano
Joseph N. DiStefano writes this blog to feed his PhillyDeals column in the Philadelphia Inquirer. Joe has been a member of Bloomberg LP’s New York Finance Team, wrote the book “Comcasted,” taught writing at St. Joseph’s University, and studied economics and history at Penn. Reach Joe at 215-854-5194 and JoeD@phillynews.com
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