Saturday, February 9, 2008

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.

7 comments:

Highrespectable said...

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H. Lee Sarokin said...

Thank you

Shaq Attaq said...

I have always found the American practice of electing judges quite strange, especially when SCOTUS follows the British/Australian practice of appointment. Wondering what your thoughts are regarding election of judges in general. As you said, the best judge can be the most unpopular... I'm not sure if I totally agree with that all the time, because sometimes I think the law should be what the people want it to be, not what the government wants the people to accept it as. However, I do recognise that many people don't really know the law well and aren't the best people to be choosing judges. I swing back and forth about whether electing judges is a good idea, and about whether judges should be sensitive to popular opinion.

That Lawyer Dude said...

Judge, we have had some jurists in some of the counties I practice in, that amaze me in that they get elected over and over again. I will say that if your proposition about recusal became law, then most of us would more than likely start supporting the worst of the group rather than the best. After all, I would rather be sure that my client not appear before the worst than hope that the best wins. A bird in the hand so to speak.

H. Lee Sarokin said...

Than you both for your comments. For the reasons I expressed in my post, the real solution is not recusal, but to end judicial elections entirely. As to Shaq's comment about popularity, judges who protect the rights of persons accused of crimes are rarely popular, but they do carry out the will of the people in the sense that they are protecting our Bill of Rights.

Shark Girl said...

Can we look up a judge in a database and see who contributed to their campaign?

It's public information to see who donated to a politician, and sites like followthemoney and opensecrets take care of that, but who tracks money donated to judges?

H. Lee Sarokin said...

I don't know the answer. I assume that it must be available, but I am sorry to say I don't know where. You might call your local courthouse and ask.