Supreme Court right to reject recusal rule
Under current law, it is generally up to a judge to decide if she should recuse herself in cases in which a party or a lawyer has contributed to — or spent money on behalf of — her campaign. In every case, a judge must assess his ability to be impartial and whether others might reasonably question it. In extreme cases — say extremely large levels of support undertaken while a case is pending — constitutional due process may impose a duty to recuse.
A recent petition by a group of retired judges sought to change that. The petition proposed that recusal essentially be made mandatory if a lawyer or party had contributed or permitted as little as half the maximum permitted campaign contribution. This recusal obligation would apply long after the contribution was made — potentially over 20 years in the case of the state Supreme Court — and to cases arising long after it was made. Our state Supreme Court rejected the petition, declining to change current law. It noted, quite sensibly, that broad recusal rules burden participation in the electoral process and that this raises substantial First Amendment concerns.
In response, the Journal Sentinel Editorial Board accused the court of “hiding behind the Constitution” arguing that “nothing” in that document prevents recusal rules and that the court’s decision had “little” to do with free speech. Nothing? Little? Assume that you are a lawyer. You want to support those candidates who you believe will best uphold the rule of law and serve justice in our state. It is indisputable that you have a constitutional right to do so within those reasonable limits established by the Legislature. But if you exercise the constitutional right to make a legal contribution to the candidates who you believe will best serve Wisconsin, you will pay a penalty. These exceptional judges will serve the rest of the state but may never be able to sit on cases involving your clients. This creates a powerful, perhaps even prohibitive, burden on the exercise of a constitutional right. The Constitution has “something” — in fact, it has “much” — to say about that.
Let’s try another example. While lawyers and judges like to pretend otherwise, applying the law is not an entirely technical and neutral process. Sometimes, the philosophy of a judge matters. So assume that you are a personal injury lawyer who has supported a number of Supreme Court justices who you believe to be properly sensitive to the interests of injured parties. You represent an injured plaintiff in a landmark case that will make new and important precedent. The proposed recusal rules would distort the composition of the justices who will hear your case, ensuring that those justices most likely to be sympathetic to your case — and only those justices — will be unable to participate in this critical case.
There is “something” and not “nothing” more to the story. We elect our judges in Wisconsin. Because we do, citizens (in addition to newspaper editorial boards, elected officials and other people who have their own large platforms from which to dispense endorsements and critiques) have the right to support the candidates that they prefer. They have the right to pool their resources to speak on relevant issues during the campaign. Rules that heavily regulate such donations also can dissuade them and curtail legitimate campaign support and issue advocacy. It can distort the judicial process by mandating that those judges whose approaches have been approved by the voters are precisely the ones who cannot sit on cases in which important precedent will be established.
There should be no hard and fast rule about judicial recusal. In assessing the argument that the Constitution requires a judge to recuse himself in a case involving a campaign supporter, the United States Supreme Court properly concluded that, while recusal might be required in extreme cases, there could be no hard and fast rule. Recusal, it said, depends on the circumstances, e.g., how much was contributed and how recently, whether the case in which recusal was sought was pending at the time, how significant the contribution was in the context of the campaign, etc.
Wisconsin’s current rule for recusal of judges is in tune with Wisconsin’s system of an elected judiciary. Newspaper editorial boards, elected officials and citizens all have the right to participate in the election process. It would be wrong to change the rules in a way that restricts the First Amendment rights of citizens to be heard as part of that process.
Rick Esenberg is the founder and current president and general counsel of the Wisconsin Institute for Law & Liberty. WILL filed a brief with the court that argued that the recusal rules proposal would be an infringement on free speech.