ABA President H. Thomas Wells Jr. (left) makes opening remarks at the ABA Annual Meeting program, “Justice for Sale? Contributions to Judicial Elections in the Wake of the Supreme Court’s Decision in Caperton v. Massey.” Panelists include (left to right) Keith Fisher, ABA Past President Dennis W. Archer and Standing Committee on Judicial Independence Chair William Weisenberg.

The most significant benefit of the Supreme Court ruling in the case of Caperton v. Massey may well be the national debate it sparked about judicial selection methods, according to panelists at “Justice for Sale?”

Recalling that retired Justice Sandra Day O’Connor has said that pressure to raise money on judge candidates campaigning for office has transformed them into nothing more than politicians wearing robes, ABA President H. Thomas Wells Jr. said the public is asking whether they can truly deliver justice.

Meryl Chertoff, director of the Sandra Day O’Connor Project on the State of the Judiciary, cited the case’s international ramifications.  Chief Justice John G. Roberts Jr. “is fond of telling how justices and judges from all over the world come to the Supreme Court of the United States” in pilgrimage, she said, suggesting the perceived influence of campaign contributions on judicial decisions could damage judicial independence around the world.  She urged serious discussion across the states about two issues:  judicial recusal and judicial selection.

Former Michigan Supreme Court Justice Dennis Archer cited other issues, such as threatened political retribution from special interest groups outraged by decisions, jurisdictions where cash contributions are delivered to judges even as they sit on the bench, and societal groups who believe the system treats them unfairly.  One solution, said the former ABA president, would be to appoint judges for specific time periods with no option of retention.

While some are calling for judges to withdraw from cases in which parties have given them money, Nevada has a strong policy supporting a judicial duty to rule in cases, said retired state Chief Justice A. William Maupin, chair of the Nevada Judicial Code Commission.  He also asked “what is significant and disproportionate,” the test set by the court in the Caperton case for contributions that would trigger a requirement that a judge withdraw.  A significant amount in one jurisdiction, say $1,000, might not be meaningful in another, he said.  In Nevada, he said, a contribution of $10,000 “is absolutely not a ground to disqualify yourself.” 

Keith Fisher, principal drafter of the ABA amicus brief in the Caperton case, suggested that issues raised by the case encompass more than impartiality from receiving money.  What is the relevance of a judge winning the election despite contributions to his opponent, he queried, asking if the winning judge should be required to withdraw.  Both he and Chertoff cited the potential for litigants to game the system, deliberately forcing withdrawal by what they perceive to be a hostile judge by making excessive contributions.