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Saturday, June 13, 2009

Judge Dread, Part Deux (Process)

Nice old school donnybrook--haven't had one of those on FFB for a while. Let me sum up: #3 argues that state judicial elections should NEVER raise due process issues under the 14th amendment; I argue they should sometimes raise DP issues. Man, I like the way that one shakes out! All I have to do is come up with some hypothetical where a state judicial election undermines any pretense of "fairness" and I win the argument.

Apparently, a $3 million campaign contribution from one party before the court, installing a new chief justice who proceeds to throw a 3-2 decision in an $83 million lawsuit isn't good enough for #3 and his best buds, Scalia, Roberts, Thomas, and Alito. So let's up the ante. Say the judge flaunted his opposition to the plaintiff prior to the case, or that he switched from pro- to anti- within hours after getting his suitcase full of cash. Or let's add race: David Duke gets elected supreme court judge in Louisiana with the campaign slogan, "the Negras is always guilty!" Or say Benjamin was Massey's brother, he still refused to recuse himself, and state law was silent. Really, this is like a parlor game. I'm sure you can come up with other scenarios. Now maybe I misread you, 3. But if so, when is due process implicated? And if it can be implicated in some circumstances, why draw the line on the other side in this egregious case (Caperton v. Massey)?

Now let's think about this from a systemic standpoint. Why is it reasonable, in general, for the Supreme Court to intervene in state court decisions regarding the results of judicial elections? Simple. States are often controlled by large, powerful, wealthy special interests, and are so to a much greater degree than the nation as a whole (this is just basic Madison, Fed 10). What would happen to those state judiciaries if the most powerful interest in any state--say Big Tobacco in NC or Big Credit Card in DE--could just buy any judicial election they wanted with the US Supreme Court having said that, a priori, they will NEVER intervene on due process grounds when a judge so elected casts a deciding vote in a case where he has a clear conflict of interest? Now, in theory, voters could rebel and support an opposition candidate. But we all know that this is NOT how state democracy works. If you take #3's "no limits" approach, holding that the circumstances of a judge obtaining his or her position NEVER implicate due process, you essentially hand over those judiciaries to the wealthiest bidder. Apparently, #3 thinks the deck of American justice isn't yet sufficiently stacked toward the rich and corrupt. Call me crazy, 3, but I think your limb has been sawed out from under you.


At 5:13 AM, Blogger Number Three said...

Bribery is clearly different--if the facts showed someone was bought off for personal gain, that would be different. I'm not sure why that distinction is so elusive.

Race--again, different. There is a long line of cases on this. Also, in those cases, the due process violation is something concrete--like state law that discriminates, based on race--NOT the appearance of impropriety that arises from judicial campaign contributions.

I do believe that once we start down this road, we arrive sooner or later at some pretty anti-democratic results. I do think that this calls into question privately funded judicial elections. Again, you may not have a problem with that. But does the due process clause, in itself, lead one to that result? I don't think so.

If TMcD REALLY wants five ronin on the US Supreme Court settling scores and making justice, then I guess that he's down with Bush v. Gore. Because the NINE could NOT let the Florida supreme court insert itself into the presidential election . . . .

That, of course, was equal protection, and not due process. But six of one, a half dozen of the other.

At 9:22 AM, Blogger fronesis said...


Does the heated nature of this debate stem from a fundamental misunderstanding?

#3 admits that a bribery case would be clear cut.

Tmcd seems to think this is obviously a bribery case.

I'm a bit confused, then, and would love to hear some clarification about bribery.

The WV judge was given $3 million by the CEO of the company and later the judge chose to rule, and rule in the favor, of that company.

My Apple dictionary defines the verb bribe as follows: 'to persuade (someone) to act in one's favor, typically illegally or dishonestly, by a gift of money'.

So it's clear that if the CEO gave the justice money directly then it's a bribe. The confusion then, is over what it means to give $3 million to the judge's election. Tmcd calls this a bribe; #3 says no way.

Am I missing something about the legal definition of a bribe?

I love #3's defense of democracy. But, as it stands, I have to come down on Tmcd's side here, and decidedly. $3 million!!! Why on earth is it not a breach of justice for the judge not to recuse himself (sorry, there are about 8 negatives in that rhetorical question...)

At 12:11 PM, Blogger tenaciousmcd said...

How exactly were the 5 justices here "settling scores" by requiring the recusal of a corrupt WV justice? This doesn't make sense. And your Bush v. Gore reference isn't really on point either--as you admit, that bogus argument was made on "equal protection" grounds, which you yourself would allow as an excuse for the supremes to meddle with state courts on matters of state law. There's really no comparison b/w Bush and Caperton: in one case the Supremes intervened for partisan purposes with NO legal precedent and NO coherent legal theory; in the other they intervened (without clear partisan consequence--after all, they didn't invalidate BB's election, just his role in THIS case) merely to enforce a common sense conception of judicial "conflict of interest" ethics.

You make two basic contentions here: (1) the due process clause of the 14th can NEVER be used on its own, w/o additional supporting clauses, to require rules of fairness apply in state courts; and (2) campaign contributions are ALWAYS presumed legitimate and bear NO relation to "bribery."

Now, I think those are both laughably absurd. As Fro says, "$3 million!!!" Your position here would, for example, invalidate Buckley v. Valeo and render FECA unconstitutional, since its reasoning (that large campaign contributions pose a threat to the legitimacy of the electoral system) would no longer carry any weight relative to the first amendment concerns once you equate (as you do here) money with political "speech."

As for your bizarre notion that due process cannot be used on its own and has no relation to rules of recusal, let me quote from my handy dandy Oxford Guide to the Supreme Court:

"The rules and principles of judicial ethics arise from custom and tradition; the constitutional guarantee of due process, statutory provisions enacted by Congress; and rules adopted by the judiciary for its own governance. In general, justices of the Supreme Court are bound by the same principles of judicial ethics that govern judges of lower federal courts and state courts. . . . Another basic principle requires that a judge not participate in a case in which he has been personally involved, or has a financial interest, or with respect to which his impartiality could reasonably be questioned." I think it's pretty clear that those conditions all appear in the Caperton case.

The Oxford Guide then goes on to cite cases (notably Aetna v. Lavoie (1986)) where the SCt intervened on purely DP grounds to recuse a state supreme court justice on conflict of interest grounds. It is true, of course, that US SCt justices are judges of their own recusal. But this is true only b/c there is no higher court to evaluate the due process issues, thus requiring self-enforcement. That, however, is not the case for the WV SCt. So, once again, your argument fails across the board.


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