Winter 2012

Can We Allow Justice To Become a Saleable Commodity?

Can We Allow Justice To Become a Saleable Commodity?

Monday, March 5, 2012 - 2:30pm
Mark I. Harrison

*

In order to eliminate the perception that “justice is for sale,” Justice at Stake—and everyone who believes that fair and impartial courts are essential to the preservation of a functioning democracy—must work to achieve the reforms necessary to insulate judicial candidates from the perception that their decisions are unduly influenced by campaign contributions. Perhaps most importantly, we must do everything possible to help our fellow citizens understand that, unlike elected legislative representatives and other elected officials, judges are not selected or elected to “represent” citizens’ views but rather are mandated to consider the facts in each case carefully and apply the law to those facts fairly and impartially.

Introduction

Judicial politics has been the subject of increasing public attention because of relatively recent infusions of huge sums of money into media-driven judicial elections. Recent surveys show that three out of four Americans believe that the money spent on judicial elections influences the decisions of the judges in question. Surveys also show that nearly half of the judges subject to election believe that campaign expenditures affect the judicial decision making process.[1] My own interest in the subject arose about ten years ago, when I was asked to chair the American Bar Association (ABA) Commission To Revise the Model Code of Judicial Conduct, which serves as the basis for the judicial ethics codes adopted by state and federal judiciaries.

I.     Revising the Model Code of Judicial Conduct To Address New Challenges

For more than a half century, the House of Delegates of the ABA has adopted model codes affecting the profession, the judiciary, and many law-related institutions and activities. Prior to my appointment to chair the Commission in 2004, the Model Code of Judicial Conduct had not been comprehensively reviewed and revised for nearly fifteen years—a period in which both the legal profession and the judiciary had undergone profound changes. Some of these changes were known to many of the Commission members: the dramatic increase of unrepresented litigants in the judicial process, the expansion of judicial campaign activity prompted by the decision of the Supreme Court in Republican Party of Minnesota v. White,[2] and the effects of disability on members of the judiciary. The hearings conducted by the Commission and the materials received by the Commission in the course of its work shed light on a great many changes in the judicial process that merited changes in the Model Code.

The Commission was composed of ten members, including the Chair. The members included lawyers, an academic, a member of the public, and state and federal judges from all levels of the judiciary. They were assisted by an Advisory Group comprising representatives from the major organizations with a direct interest in the judiciary and the administration of justice.[3] When it began its work, the Commission tentatively decided to change the format of the Code and adopt a format similar to that of the Model Rules of Professional Conduct. The former Code was characterized by Canons, lengthy prescriptive language intended to explicate the Canons, and lengthy commentary intended to provide explanatory or aspirational interpretation for the prescriptive language. A majority of the Commission’s members expressed their belief that the former Code was not user friendly because it was often difficult to determine what language provided the basis for discipline. In the new format, the black-letter “rules” provide the basis for discipline, and they are clearly distinguished from “comments,” which provide explanatory or aspirational commentary that informs the rules. The Commission was determined not to “reinvent wheels” unnecessarily, since much of the substance of the existing Code—which had been adopted in whole or in part by nearly all of the states and the federal judiciary—had withstood the test of time. As a result of that early policy decision, most of the prior Code was preserved despite the changed format, revised language, and addition of comments clarifying language in the earlier version of the Code.

However, the Commission was aware of significant changes affecting the judiciary since the prior Code had been adopted, and it understood that it would have to consider and probably adopt new Code provisions to address those changes. For example, since the prior Code’s adoption in 1991, the increased involvement of pro se (unrepresented) litigants had raised questions about how far a judge could go in assisting pro se litigants without violating the rules prohibiting ex parte contacts. Another new phenomenon was the use of so-called “drug courts,” alternative forums in which judges are often called upon to provide prophylactic assistance involving direct interaction with people who have been charged with drug offenses and, later, to deal with the same people in their traditional judicial role. More specifically, the nontraditional role of judges in drug courts raised concerns about the applicability of the prohibition on a judge’s ex parte contacts with litigants.

Additionally, judges testified at public hearings that the existing Code imposed constraints on their ability to speak in various public settings about the role of judges and, as a result, limited the opportunities for judges to serve as educators about the judiciary. Judges also testified about the absence of provisions in the existing Code for dealing therapeutically with judges’ own problems with alcohol, drugs, and emotional issues. The existing Code prohibited judges from membership in clubs that invidiously discriminate on the basis of race, ethnicity, religion, national origin, ethnicity, and gender, but did not address the issue of sexual orientation. These and other issues that had not been addressed in the existing Code were considered by the Commission and became the subject of new rules and comments in the revised 2007 Code.

II.    Regulating Judicial Contributions Through Rules and Rulings

In view of the escalating sums of money spent in judicial election campaigns and the resulting concerns about the impact of money on the impartiality of judges who were the beneficiaries of large campaign contributions, political activity and related fundraising activities were among the most vexing questions that the Commission considered. The Commission was aware of the fact that the House of Delegates had actually adopted a rule intended to heighten the sensitivity and awareness of judges about the effect of their perceived impartiality when receiving campaign contributions from litigants and lawyers who appeared before them.[4] The Commission also knew that the existing rule had not been adopted by state supreme courts. Despite that history, the Commission recognized that the revised Code had to include a rule which required that judges be disqualified when they were the beneficiaries of contributions from lawyers and parties that raised questions about the judges’ impartiality. The Commission was painfully aware that the rule had had only symbolic significance but also was aware that other entities within the ABA were exploring ways to make the rule more effective. As a consequence, the Commission, with no illusions about its efficacy, perpetuated the existing rule and recast it as Rule 2.11(A)(4), which provides:

        (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:

        …

        (4)  The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous [insert number] year[s] made aggregate contributions to the judge’s campaign in an amount that is greater than [$[insert amount] for an individual or $[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity].

The ABA House of Delegates unanimously adopted the revised Code in February 2007 and referred it to courts of last resort throughout the country for consideration and adoption. As of June 2012, the revised Code has been adopted by twenty-six states; fourteen have established committees to review their codes, two have proposed final revisions to their codes, one has proposed interim revisions to its code, and eight have not yet established a committee to review their codes.[5] Only nine states have not yet appointed committees to study the revised Code, and those states are being actively encouraged to do so by the Policy Implementation Committee of the ABA.

In the years immediately following adoption of the revised Code, it became increasingly obvious that expenditures in judicial elections could not be constrained by Rule 2.11(A)(4). The money invested in contested judicial elections rose from $83 million between 1990 and 1999 to nearly $219 million between 2000 and 2009, and Rule 2.11(A)(4) was inadequate to protect the judiciary from claims that “justice was for sale.” The problem attracted national attention in Caperton v. A.T. Massey Coal Co.,[6] a landmark case in which the Supreme Court held that, in certain circumstances, excessive campaign contributions can raise legitimate concerns about a judge’s impartiality and violate a litigant’s right to due process. Faced with the new and troubling reality that the infusion of money into judicial elections was undermining public confidence in the impartiality of the judiciary, the ABA Standing Committee on the Independence of the Judiciary (SCJI) focused its attention on the issue of disqualification and, after some false starts, ultimately secured unanimous passage of a resolution in the House of Delegates at the 2011 Annual Meeting.[7]

The resolution presented by the SCJI and adopted by the House of Delegates “urges states to establish clearly articulated procedures for judicial disqualification determinations and prompt review of denials of requests to disqualify.”[8] In addition, the resolution

urges states in which judges are subject to elections of any kind to adopt (a) disclosure requirements for litigants and lawyers who have provided, directly or indirectly, campaign support in an election involving a judge before whom they are appearing; and         (b) guidelines for judges concerning disclosure and disqualification obligations regarding campaign contributions.[9]

Finally, the resolution directs the ABA Standing Committee on Ethics and Professional Discipline to “proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.”[10] It obviously remains to be seen whether changes can and will be made to the Code that will effectively constrain the spending in judicial elections that is undermining public confidence in the judiciary. These changes will necessarily impose burdens on both lawyers and judges, and it is worth noting that Canon 4 of the Code already provides that “[a] judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary.”[11] The quoted admonition is intended generally to assure that the campaign activities of judges and those acting on their behalf do not compromise the judge’s independence or public perception of the judge’s impartiality.

The standing committees charged with adopting efficacious standards can find some solace in the Caperton opinion, in which Justice Kennedy stated that “[s]tates may choose to ‘adopt recusal standards more rigorous than due process requires’” in regulating judicial conduct vis-à-vis campaign contributions.[12] While Caperton arguably offers the prospect of heightened regulation, the Court’s recent decision in Citizens United v. FEC[13] complicates the committees’ task of drafting effective standards.

III.  Citizens United and the “New Politics”

In Citizens United, the Court held that corporations and unions are, like individuals, free to contribute to candidates, including judicial candidates, in contested elections.[14] The Citizens United decision thus may heighten the misconception that judges are simply politicians in black robes. To maintain faith in the judiciary in the wake of Citizens United, the electorate needs to be educated about how and why judges are different from other elected representatives and officials.

Justice Stevens’ powerful and impassioned dissent in Citizens United expressed his concern regarding the effects of campaign spending:

The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

They cannot vote or run for office… . The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.[15]

As Justice Stevens’ opinion shows, it is already well established that the public is losing confidence in the impartiality of the judiciary as a direct result of the huge infusion of money in judicial elections and the resulting proliferation of negative and unseemly media advertising that undermines the ideal of judicial impartiality.

Justice at Stake, a nonprofit education and advocacy group aimed at keeping campaign cash out of the courtroom, and New York University’s Brennan Center have completed a study and issued a stunning report that supports these conclusions.[16] Their Decade of Change report confirms Justice Stevens’s concerns and our worst fears about the cumulative effect of money and media on citizens’ perceptions about the judiciary.[17] It confirms that the public is increasingly led to believe that judges—like elected representatives and other elected public officials—are somehow supposed to “represent” voters and reflect the views and ideologies of the voters in their judicial decisions.[18] Public education and discourse largely fail to ameliorate these misconceptions and fail to teach that judges, unlike elected representatives and public officials, do not represent the specific interests and views of voters, but rather are constitutionally obligated to apply impartially the applicable law to the facts of a case.

In the wake of Citizens United, new rules governing judicial conduct will not be enough to eliminate money from judicial elections. However, the principle articulated in Caperton hopefully will have a prophylactic and inhibiting effect on judges’ decisions to accept campaign contributions without formal limits. Moreover, the revised Code does have provisions for the disclosure of campaign contributions, and some language in Citizens United clearly authorizes the enactment of regulations requiring public disclosure of the source of campaign contributions.[19] In addition, existing rules in the Model Code require other disclosures, which may be helpful in promoting the disclosure of campaign contributions in judicial elections.[20]

There has always been tension between the courts and the legislative and executive branches of government.[21] Regrettably, politicians continue to engage in unseemly, politically motivated “court‑bashing” that undermines the respect due to the courts as an institution. At the 2011 Values Voter Summit, former House Speaker Newt Gingrich questioned why national security officials should be required to obey decisions of the Supreme Court.[22] During an appearance on Face the Nation, the former Speaker also said that Congress could subpoena federal judges and ask them to explain their decisions.[23] Several members of Congress have introduced the Supreme Court Transparency and Disclosure Act of 2011 to encourage members of the Supreme Court to explicitly adopt and follow the Code of Judicial Conduct.[24] In a lead editorial in Judicature, the American Judicature Society, a highly respected, century-old organization dedicated to the improvement of the administration of justice, echoed the objectives of the congressional proposal.[25]

IV.  Reversing the Assault on Impartial Courts

As judicial elections have required ever-larger sums of money over the past decade, business interests view the implications of judicial politics and money with an increasingly jaundiced eye. The U.S. Chamber of Commerce recognizes that jurisdictions that employ a merit selection/retention judicial election system provide a more stable environment in which businesses can thrive without becoming involved in special-interest, money-driven judicial politics.[26] The Committee for Economic Development (CED)[27] has reached similar conclusions after studying the effects of money-driven judicial elections. In its publication Partial Justice,[28] the CED recommended several changes that would not “resolve the core problem of judicial elections” but “will make a major contribution towards addressing their most deleterious effects.”[29] Specifically, the CED recommended:

    Public financing should be established for judicial campaigns… .
    Judges should not be selected in partisan elections in which candidates run under party labels… .
    Lengthening terms is a necessary step to strengthen the caliber and independence of state courts… .
    States should establish judicial performance evaluation commissions … .[30]

Each of these recommendations came with an explanation and comment, but all of the recommendations were directed to neutralizing or reversing the current assault on fair and impartial courts:

CED believes that evolving campaign tactics and the Supreme Court’s recent decision in Citizens United will make a bad system even worse in states that hold judicial elections. We urge public officials, members of the business community, judges, members of the legal profession and community leaders in the states to join in our efforts to increase public understanding of the importance of an independent judiciary and the consequences of judicial elections. We call upon these leaders to work together to initiate urgently needed reforms before the rule of law is further eroded by the perception that justice is for sale.[31]

The fact that business leaders and members of the public at large are becoming alarmed about the corrosive effect of judicial campaign funds on the preservation of an impartial judiciary should provide the climate for essential reforms.

I currently chair the Board of Justice at Stake, a nonpartisan national partnership of more than fifty organizations working to keep our courts fair, impartial, and independent. Justice at Stake and its partners seek to protect courts through public education, coalition building, litigation, and reform and have won victories in legislatures, courthouses, and the court of public opinion.

Conclusion

In order to eliminate the perception that “justice is for sale,” Justice at Stake—and everyone who believes that fair and impartial courts are essential to the preservation of a functioning democracy—must work to achieve the reforms necessary to insulate judicial candidates from the perception that their decisions are unduly influenced by campaign contributions. Perhaps most importantly, we must do everything possible to help our fellow citizens understand that, unlike elected legislative representatives and other elected officials, judges are not selected or elected to “represent” citizens’ views but rather are mandated to consider the facts in each case carefully and apply the law to those facts fairly and impartially.

[1].        James Sample et al., The New Politics of Judicial Elections 2000-2009: Decade of Change 67 & 76 nn.1-3, 77 n.4 (Charles Hall ed., 2010), available at http://brennan.3cdn.net/d091dc911bd67ff73b_09m6yvpgv.pdf.

[2].        536 U.S. 765 (2002).

[3].        These organizations included the Association of Judicial Disciplinary Counsel, the Conference of Chief Justices, the National Judicial College, the American Judicature Society, the ABA Standing Committees on Ethics and Judicial Independence, and the Judicial Conference of the United States.

[4].        Canon 3E(1)(e) of the prior Model Code was first adopted by the House of Delegates in 1999. See Model Code of Judicial Conduct Canon 3 (2004).

[5].        These state committees typically recommend adoption of most of the Model Code but usually propose some changes based on practices, procedures, and history unique to each state.

[6].        556 U.S. 868 (2009).

[7].        The Standing Committee on the Independence of the Judiciary (SCJI) resolution was presented as Report 107 at the Annual Meeting of the ABA in Toronto in August 2011. More recently, the SCJI circulated a draft proposal to implement Report 107. The SCJI proposal is to be considered by the House of Delegates at the 2012 Annual Meeting. The proposal includes amendments to Rule 2.11(A)(4) and its comment, Rule 4.4 relating to Campaign Committees, and a proposed model supreme court rule intended to facilitate implementation of the requirements of the proposed amendments relating to record-keeping by lawyers and law firms contributing to judicial campaigns.

[8].        Standing Comm. on the Independence of the Judiciary, ABA, Resolution 107 (revised July 22, 2011) (adopted by the ABA House of Delegates on August 8-9, 2011), available at http://www.americanbar.org/content/dam/aba/administrative/
judicial_independence/report107_judicial_disqualification.authcheckdam.pdf.

[9].        Id.

[10].      Id.

[11].       Not surprisingly, therefore, the proposals circulated by the SCJI presume that the judge will “know the amount, source, and value of direct and indirect campaign contributions to the extent that they are matters of public record and reasonably available.” ABA Standing Comm. on Ethics & Prof’l Responsibility & ABA Standing Comm. on Prof’l Discipline, Proposed Amendments to the Model Code of Judicial Conduct Regarding Judicial Disqualifications, ABA (Feb. 3, 2012), http://www
.americanbar.org/content/dam/aba/migrated/cpr/ethics/20111228_scepr_draft
_proposed_amendments_and_hearing_notice_dec_2011.authcheckdam.pdf. The proposed model supreme court rule would require lawyers and law firms to record and report all judicial campaign contributions to “the agency, if any, designated by court rule.” Id.

[12].      Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009) (quoting Republican Party of Minn. v. White, 536 U.S. 765, 794 (2002) (Kennedy, J., concurring)).

[13].       130 S. Ct. 876 (2010).

[14].      Id.

[15].       Id. at 930 (Stevens, J., dissenting).

[16].      Sample et al., supra note 1.

[17].       Id. at 76 n.2.

[18].      Id. at 67-77.

[19].      Citizens United, 130 S. Ct. at 915 (2010) (“[W]e reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”).

[20].     Rule 3.13 of the revised Model Code requires judges to report the source of all gifts in excess of a specified value, Model Code of Judicial Conduct R. 3.13 (2011), and Rule 3.14 requires the disclosure and reporting of the reimbursement and waiver of expenses incurred by a judge at privately sponsored seminars and other educational symposia, id. R. 3.14.

[21].      See Charles Gardner Geyh, When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (2006) (reviewing, as a reporter for the Judicial Code Commission, the often uneasy relationship and its implications for the courts).

[22].      Debra Cassens Weiss, Gingrich’s Plan To Chastise Judges: Subpoena Them, Ignore Their Decisions, Slash Their Budgets, ABA Journal (Oct. 12, 2011, 5:30 AM CDT), http://www.abajournal.com/news/article/gingrichs_plan_to_chastise_judges
_subpoena_them_ignore_their_decisions.

[23].      Id.

[24].      H.R. 862, 112th Congress (2011) (introduced by Rep. Murphy of Connecticut).

[25].      Editorial, Supreme Court Justice and the Code of Conduct, Judicature, July-Aug. 2011, at 4.

[26].      U.S. Chamber Inst. for Legal Reform, 2010 U.S. Chamber of Commerce State Liability Systems Rankings Study (2010), available at http://www
.instituteforlegalreform.com/doc/2010-us-chamber-of-commerce-state-liability
-systems-ranking-study.

[27].      The Committee for Economic Development (CED) is a “non-profit, non-partisan, business‑led public policy organization” that “conducts research on major economic and social issues and actively informs and engages the business community in an effort to achieve policy reform for the good of the nation.” About CED, Committee for Econ. Dev., http://www.ced.org/about/about_ced (last visited Apr. 3, 2012).

[28].      Comm. for Econ. Dev. Subcomm. on Money in Politics, Partial Justice: The Peril of Judicial Elections (2011), available at http://www.ced.org/images/
content/events/moneyinpolitics/2011/38751_partialjustice.pdf.

[29].      Id. at 6.

[30].      Id. at 6-7.

[31].       Id. at 7.

Mark I. Harrison is a member of Osborn Maledon, P.A., in Phoenix, Arizona, and is the current Chair of the Board of Justice at Stake. He served as Chair of the ABA Commission To Revise the Model Code of Judicial Conduct, the product of which was adopted unanimously by the ABA House of Delegates in February 2007. This Essay is adapted from remarks delivered on October 22, 2011, at the Yale Law & Policy Review’s Conference on Judicial Politics.

Cite this piece: Mark I. Harrison,

Can We Allow Justice To Become a Saleable Commodity?

, Yale L. & Pol'y Rev. Inter Alia (Mar. 5, 2012, 2:30 PM), http://ylpr.yale.edu/inter_alia/can-we-allow-justice-become-saleable-commodity.