MANDATORY RECUSAL FOR JUDGES

Adam Liptak, once again, has pointed up one of the failings of our judicial system (N.Y. Times 1/29/08)----namely that judges preside over cases in which lawyers and litigants contributed to the judges' election campaigns. The article cites a study by Professor Vernon Valentine Palmer which indicates that those who contributed had a higher success rate from those judges to whom they had made contributions. Whatever the significance of the study, no evidence of favoritism should be necessary. As Mr. Liptak and Prof. Palmer both suggest, a judge should recuse himself from presiding over any case in which a lawyer or litigant has made a substantial contribution to the judge's election. (Of course, "substantial" needs defining.) The appearance of impropriety is there absent any proof of favoritism; the existence of such proof makes the suggestion even that more compelling.

Although Mr. Liptak indicates that "you do not have to do away with elections", it is certainly a goal worth exploring. The average voter does not have the slightest idea whether or not the person running will make a good judge or even what constitutes the necessary qualities or qualifications. Judges running for re-election are frequently judged on the popularity of their decisions or the lack thereof----hardly a criterion for continued service. The most unpopular judge can be the best. Added to all this is some of the unseemly campaigns and the issue raised by the article about the influence of contributions.

Can you imagine a lawyer or a litigant in the middle of a trial walking up to the bench and handing the presiding judge a check! It is difficult to distinguish that scenario from a contribution made at an earlier date. So long as judicial elections exist, the integrity of the system requires that Prof. Palmer's admonition be followed: Judges should recuse themselves in cases in which either a lawyer or litigant has made more than a nominal contribution to their election.