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Thanks to everyone who came out! The forum was a great success with stimulating discussion about a critical issue facing our courts. We hope to post a video of the forum in the near future with the help of CANTV.

5:03 pm

Mr. Skaggs on merit selection: Politics intrudes on the appointment process as well. It’s not a panacea to the problems created by judicial elections. And retention elections, however well designed to remove money from judicial independence, also doesn’t always work. It’s naive to think that merit selection can solve all of the problems.

Audience Question: Would anyone like to comment on public financing, for those states that continue to elect, and North Carolina’s experience?

Mr. Skaggs: Public financing would do a tremendous amount to address this problem. It gets judges out of the business of dialing for dollars and instead get them into the business of talking to voters. There was a setback last week when a federal court in NC struck down part of the public financing law. There has to be a political appetite for that kind of reform.

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Audience Comment (Chicago-based solo practitioner): With all due respect to the retired judge, since I first started practicing, there have been several scandals involving judges and campaign contributions. The problem is that you have one or two bad judges who give the other judges a bad reputation. People get really disgusted with that, even though, in my experience, 99.9% of the judges have been good. You go to rural Illinois, $2500 can buy you a lot of radio time, a lot of ads. It’s a lot of money. I don’t think it’s too low.

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4:54 pm

Audience Question: How do you deal with the surrogate problem, where you don’t really know the source of the contribution?

Judge Lippman: You deal with it very carefully. It’s impossible to deal with every angle. But you adapt. My own view is that it’s a very difficult thing. Compelling disclosure is really difficult and I don’t think it’s particularly viable from my perspective.

Mr. Skaggs: You can get at that by requiring comprehensive disclosure rule where organizations and litigants have to disclose their own spending. This is based upon an Obama administration rule under consideration for government contractors. The resistance to these rules by the parties that are spending is extreme. These parties are spending in all forms of races, including legislators, which makes it that much more difficult to get the rules passed.

Audience Question 2: How do you address contributions that are made after assignment? Are there rules sanctioning lawyers or others if you could establish that they gave money in an attempt to influence a judge?

Judge Lippman: We try to focus on the election cycle, when the bulk of contributions are made. And yes, you have a whole disciplinary system geared toward misconduct.

Audience Question from a Cook County Circuit Court Judge (Retired): Back in the old days, we never got that kind of money. You’re really assuming the worst about judges. It was my own conscience that determined what I would do. Why can’t we rely on that? $2500? Come on.

Judge Lippman: My answer is that I have confidence in you without knowing you at all. That you’ll follow your conscience. But the damage to our institution is so great when there’s a perception of impartiality when Joe Schmo contributes to your campaign and then the judge hears a case before Joe Schmo.

Audience Response: Does your research say that? That judges lean toward contributors?

Judge Lippman: The research says that the public perceives an impropriety.

Audience Member, Chicago Attorney: I practiced before Judge ___ here, and I never contributed to his campaign.

Judge Lippman: And if your opponent made a big contribution to a judge in your case, how would you feel?

Audience Member Response: I would suspect. But my question is this. We’ve watched appellate court judges and justices get tremendous publicity for not recusing themselves from cases where they should recuse themselves. Why aren’t we seeing more press on lower courts doing this?

Judge Lippman: My opinion is that look at how the campaign for the President of the United States and how critical they are of the Supreme Court justices. Then it goes up and down the line, where if you don’t like a judge’s decision, you get the idea that you can just get rid of him! I think that all of the things we’ve all said today apply from the lower courts all the way to the Supreme Court.

Mr. Brandenburg: Our organization collects high court level data because there’s much more data available from the high courts. We hear things anecdotally about the lower courts, but one of the aspects of recusal and disclosure is record-keeping around disclosure.

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4:41 pm

Mr. Skaggs: There’s a tension between the old ethical rules that assume judges don’t know who their contributors are and the reality of the Internet age.

Remember that Judge Benjamin only received $1,000 from Massey. Recusal standards based solely on set monetary amounts would not have required Judge Benjamin to recuse himself.

Judge Lippman: I totally agree that disclosure is important, but I believe in bright line rules (such as the NY rule that sets the re-assignment standard at $2500 per litigant).

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4:36 pm

Mr. Brandenburg to Mr. Bennett: Did you encounter the complaint that judges would use the rule to strategically disqualify one another and get each other off cases?

Mr. Bennett: We did, and that’s why we recommended that review be conducted by an unrelated third-party.

Mr. Brandenburg to Ms. Gray: What are the principles of addressing judicial recusal.

Ms. Gray: There must be differences in the procedure of the rules between trial and appellate courts. But the standards or circumstances giving rise to disqualification don’t need to vary across court levels. In other cases, the standards are consistent. For example, if a litigant is within a 3rd degree relative of the judge, the judge must recuse himself, no questions asked, whether it’s a trial court or appellate court.

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4:31 pm

Peter Bennett: We need more judges to act like Judge Lippman. But I can attest that there are plenty of lawyers talking about him behind his back.

On Friday, August 3rd, the ABA’s 2nd Annual Forum on Judicial Recusal will be held in Chicago. At the forum, Judge Benjamin will be making his first appearance since Caperton.

The public’s understanding of the judiciary is at a historical low. 36% respondents of a recent national survey could not identify all three branches in government. Nor do most people understand that a split US Supreme Court decision has the same effect as a 9-0 decision.

“Debt of Hostility” is an issue often overlooked. This is where contributions are made to a judge’s opponent. The influence can still be significant and disproportionate in these instances, especially as winning election becomes ever more dependent upon raising large amounts of money.

Through a lengthy research and debate process, it took three years for the ABA to come up with recommendations on judicial recusal standards. Our research turned out to be one of the most controversial issues the ABA has faced. We were opposed by stakeholders of all kinds and ultimately came up with “Resolution 107” and its accompanying report.

Among other things, Resolution 107 says:

•  Judges should bring recusal procedures up to date with technological ability. When a judge refuses to disqualify him or herself, two things should happen: 1) There should be a written or recorded explanation. 2) The decision should be immediately appealable.
• Grounds for disqualification should be stated clearly and publicly.

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4:12 pm

Judge Lippman discusses the process of reforming New York’s system:

We had the usual conduct rules that suggested but did not require judges to recuse themselves if they accepted funds. But that process is tortured. By setting the standard, we make it less difficult to know whether you should recuse yourself.

Lawyers and judges don’t want to recuse themselves because they feel it’s tantamount to admitting they’ve done something wrong. And the last thing a lawyer wants to do is make a motion to disqualify a judge. Standards make it less painful.

In the old days, it was more difficult to keep track of contributions, but computers have made the contribution data easily available.

My background was as chief administrator of the court system. I’m used to taking the simplest route from A to B. I don’t believe in beating around the bush and I think sometimes you just have to take the heat and do what you think is right. That’s what I tried to do in New York. Our approach was to cut this off at its source.

We made an assignment rule rather than a recusal rule. I came to the $2500 amount by looking at the public contributions and tried to find a middle ground that was not trivial and not so high that it was without meaning. By allowing for waiver within 20 days, we address the problem of strategic contributions aimed at getting a judge removed from a case.

I believe that if you raise volatile issues and talk about every detailed concern, you don’t get anything done. You make a bold, conceptual announcement.

So far, so good. Anecdotally we know it’s a deterrent. We see a lot of contributions of $2,499–that tells you something. We’ll have a lot more data this year.

Of 48 judges running this cycle, about 15 were reassigned under the new rule. Overall, contributions over $2500 are down from about 20% of contributions to 13% of contributions. We take the entire burden–the judges and lawyers are not involved, though they’re free to make motions. And [the NY Court] puts contributions on our website.

In the modern world, we can’t cover our eyes to what is completely obvious. What could be more corrosive than making a contribution to a judge and then coming before the judge a short while later? From my perspective, there’s no compromise on this issue.

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4:01 pm

Cynthia Gray: Cindy regularly researches judicial ethics problems and discussed an example of an Illinois judge who faced a campaign contribution conflict.

We blogged  this example earlier this year, writing:

The sole asbestos judge in Madison County, IL was dropped from several asbestos cases after receiving over $30,000 in campaign contributions from asbestos plaintiffs’ law firms, reports the Belleville News Democrat. Just days before contributing to Judge Crowder’s campaign for re-election, the three firms had been assigned to her docket.

Upon learning of the contributions, Chief Judge Ann Callis transferred the cases to another judge’s docket.

There’s been no effort in Illinois to amend the code of judicial conduct. Amending these rules won’t solve all of the problems, but it’s a first step.

Caperton has not resulted in widespread reform that we’d hoped for. American Judicature Society has been reforming for over 100 years, so we understand that reform takes awhile.

Mr. Brandenburg: Why aren’t more attorneys filing motions for recusal?

Ms. Gray: Most attorneys look at Caperton and know it’s a good case to cite in an extreme case, but in the day-in day-out situations [which involve dollar amounts much smaller than the $3 million at issue in Caperton], it doesn’t help them.

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Adam Skaggs, in response to Bert Brandenburg. I accept that judges believe they can still make decisions in good faith, despite campaign contributions. But the perception of judiciary’s integrity is still affected. Their intentions–or even their actual impartiality–aren’t sufficient, because the public perception really matters.

Mr. Brandenburg: Judge Lippman, how do you reflect on public confidence?

Judge Lippman: I spoke on many occasions to Judge Benjamin and he’ll tell you he’s a victim of circumstances. But the appearance is so horrible that it’s totally damaging to the reputation of the institution.

The difference between this country and others around the world is that people have this ultimate acceptance that decisions come down from a neutral perspective. E.g., Gore vs. Bush, the Court’s decision was accepted by everybody, which is not something you see in other countries. There is nothing that could be more damaging to the institution than to lose the perception of impartiality.

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3:45 pm

Adam Skaggs: It’s important to realize that standards should not only address direct contributions. Such a rule would not have matter in Mr. Caperton’s case.

The good news is that 11 states have done something. The bad news is that several states have done counterproductive things. Nevada voted down a recusal standard of $50,000. Wisconsin rejected other recusal rules and adopted rules written by reform opponents. The rules say that no level of spending is ever sufficient grounds for recusal. 

Two states, Georgia and Tennessee, have acted recently to adopt promising rules that take into account the totality of circumstances. These are promising rules because they acknowledge that spending and influence can take many forms and rules need to be flexible.

New York sets a standard based upon contributions only, which is encouraging, but they may be advised to take a broader approach. Georgia & Tennessee are terrific models.

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3:35 pm

Adam Skaggs will talk more about the Caperton v Massey case. Hugh Caperton told his story from that case, and Adam recalls it:

This West Virginia case involved a small coal company run by Mr. Caperton and a large company, Massey. In 2002, Caperton sued and won a $50 million award for damages caused by Massey’s tortious conduct. As the course progressed through the court system, one of the state Supreme Court justices was up for re-election. Massey company invested about $3 million in one candidate’s campaign–Judge Benjamin. He only gave $1,000 directly to Judge Benjamin, but he spent $2.9 million in support of Judge Benjamin’s campaign. Judge Benjamin won.

When Mr. Caperton’s case came before the Supreme Court, he moved more than once for now-Justice Benjamin’s recusal. The justice refused and Mr. Caperton lost at the state supreme court level. The US Supreme Court overruled in a 5-4 decision.

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3:30 pm

“It’s hard to believe that lawyers and business organizations would be willing to contribute millions of dollars unless they believe they are receiving something valuable in return.”

The courts are the lynchpin of the American democratic style of government. The public must have complete confidence that judges are deciding these issues competently and impartially.

3:25 pm

Practitioners widely agree that judicial disqualification is the most important issue facing the judiciary today.

Yet, implementation produces a truly immense challenge.

Caperton v. Massey (2009) confirmed the need for judges to recuse themselves in certain cases, but the Court left the specific recusal standard unresolved. Justice Kennedy stated that states would do well to adopt recusal rules more stringent than even the US Constitution requires.

In response to Massey, 11 states adopted rules setting recusal standards, campaign contribution disclosure, and  grounds for disqualification.

3:15 pm

Judge Lippman will does why judicial recusal standards are so important.

“First, we have the most enviable justice system in the world. Americans overwhelmingly believe the tcourts administer fair and impartial justice. But courts are under pressure from the onslaught of money.”

In 2008, Illinois saw the most expensive state Supreme Court campaign in history. $9.4 million were spent. In 2010, it saw one of the most expensive retention campaigns (where candidates run to retain their seat but do not face direct competition), spending more than all other retention campaigns across the country!

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Laurel Bellows, President-Elect of the American Bar Association: Not only do judges need to be fair and impartial, but the public must perceive them to be just as well.

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Bert Brandenberg, moderator: “This is one of the most important topics you’ve never heard of.”

We’ll hear about why this is such a huge problem across the nation and political spectrum.

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Today’s forum addresses issues of judicial recusal and campaign contribution disclosure. The Union League Club of Chicago is hosting.

Before we begin, here’s a brief look at the forum’s superb line-up of panelists.

Judge Jonathan Lippman: Judge Lippman is Chief Judge of the New York State Courts. He is an innovator in court administration and has lead recent reform efforts in judicial recusal standards as well as pro bono requirements for attorneys in New York.

Bert Brandenberg: Mr. Brandenburg is Executive Director of Justice at Stake, where he has lead numerous efforts to keep courts fair and impartial. Mr Brandenburg is also a lecturer at Georgetown University School of Law, and a graduate of the University of Virginia and the University of Virginia School of Law.

Cynthia Gray:  Since 1990, Cindy Gray has served as director of the Center for Judicial Ethics at AJS, a national clearinghouse for information about judicial ethics and discipline.

Adam Skaggs: Adam Skaggs is senior counsel for the Brennan Center’s Democracy program, where he works on a range of issues related to money in politics, judicial independence, and voting rights.

Peter Bennett: Mr. Bennett is Chair of the ABA STanding Committee on Judicial Independence and practices at the The Bennett Law Firm in Portland, ME and Boston, MA.