CCL President Robert S. Peck talked about the need for stronger public disclosure requirements as part of the remedy needed to assure fair and impartial courts in the aftermath of heightened judicial election spending during a one-day symposium at New York University School of Law November 14. The symposium, “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton,” explored the aftermath of the U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co., where the Court ruled that due process required the recusal of a justice of the West Virginia Supreme Judicial Court because a party in a pending case spent $3 million to oust a justice of that court in favor of a challenger he believed would be more favorable to his interests. The decision endorsed the idea that state judicial ethics rules could go further in disqualifying judges from sitting on cases where their impartiality could be questioned as a result of a debt of gratitude based on financial support of their election.

The symposium’s first panel recounted the story of the Caperton case, where coal company owner Don Blankenship spent millions in independent expenditures in support of now-Justice Brent Benjamin’s campaign for a seat on the West Virginia court and who then provided the deciding vote overturning a $50 million verdict against Blankenship’s company. Moderated by New York Times Supreme Court reporter Adam Liptak, the panel found that the dissenting justices’ concern about a flood of recusal motions have not come to pass.

The second panel, featuring CCL’s Peck, looked at the struggle to define rules that go further than due process requires. Peck emphasized that recusal was a remedy, but an imperfect and less than optimal one and that the objective still is an impartial tribunal. Peck advocated that better disqualification rules be accompanied by improved disclosure of campaign spending sources, including those that go into independent expenditures, issue advocacy and voter education efforts in judicial elections. He pointed out that someone with Blankenship’s intentions today would likely contribute to a number of innocuous sounding committees that would seek to perform the same function of changing the membership of a court in a way that launders the money given and makes it more difficult to trace back to its source. He described some of the issues now pending in Illinois, where accusations are pending in court about indirect efforts to replace a justice and affect the outcome of several cases.

Subsequent panels explored judges’ views and sources of bias. Participants included New York Chief Judge Jonathan Lippman, Ohio Chief Justice Maureen O’Connor, former Alabama Chief Justice Sue Bell Cobb, and former Wisconsin Justice Louis Butler.

Peck was invited to participate as the author of an amicus brief on behalf of the American Association for Justice in Caperton and as the leader in a successful effort in the American Bar Association’s House of Delegates to resolve that courts must adopt transparent and timely procedures for permitting recusal and providing for independent review of any decision not to step down from a case. The resolution had the endorsement of the Conference of Chief Justices. The symposium was co-sponsored by NYU’s Journal of Legislation and Public Policy, the Brennan Center for Justice, and the ABA Center for Professional Responsibility.