In a prior post, I wondered whether anyone but me was paying attention to how we judge our judges. I still wonder about that, but at least now it seems that other legal policy wonks like me are paying attention to when a judge must recuse himself from hearing a case. Thanks to the U.S. Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., courts around the country have been considering how to handle recusal motions. In a 4-3 vote, the Wisconsin Supreme Court adopted rules amending the state’s Code of Judicial Conduct so that recusal is not required merely because a party to the proceedings contributed to the judge’s election campaign, or sponsored an independent expenditure or issue advocacy during the judicial campaign. The majority apparently rested on contributors’ First Amendment rights. In Florida, several committees of the Florida Bar are considering how judges should handle motions for disqualification. One of the alternatives they are considering is the equivalent of a peremptory challenge, like the judicial substitution rules in Wisconsin (Wis. Stats. secs. 801.58 and 971.20). Most attorneys and judges agree that those rules work rather well in the trial courts. It will be interesting to see if something like that can be applied in the appellate courts. For example, what if criminal defendants (or their defense attorneys) routinely filed substitution requests against an appellate or supreme court judge who had campaigned on the theme that he would be “tough on crime.” (Don’t they all?) Who would then sit in for that judge? Or would the court simply be shorthanded? Obviously, the details and mechanics of the rule need some work. But the idea that litigants should be able to “judge” the judges, by filing recusal motions or substitution requests, has some merit. Whether judges are elected or appointed, the litigants and attorneys who appear before them are best situated to judge their performance on the bench. Shouldn’t we give them some measurable and meaningful method of expressing their approval or disapproval? Money talks, but so does a motion to recuse, or request to substitute, a judge.
How we resolve our disputes
Entries in judging (2)
Some of my earlier blogs concerned selection of mediators and arbitrators. One of my not-so-original or profound conclusions was that you must follow the money in order to tell where your mediator or arbitrator is coming from. Obviously, the same conclusion applies to judges. Whether the judge is appointed or elected, the public should know what he or she did before taking to the bench, and who supported (paid for) his election or appointment. Despite increasingly partisan and costly judicial elections, Wisconsin Supreme Court Chief Justice Shirley Abrahamson has voiced her support for judicial elections. However, a continuing dispute is whether we can or should limit what judges, and their supporters, can say or do in judicial elections. Do the canons of judicial ethics restrict their campaign ads to any greater degree than ads for candidates for other offices? Can judges, or their supporters, lie or tell half-truths during judicial elections? A panel of judges is currently considering that question in Wisconsin. The case involves a Wisconsin Judicial Commission complaint about statements made in ads supporting Wisconsin Supreme Court Justice Michael Gabelman’s successful election campaign last year against former Justice Louis Butler. The spectacle of judges judging judges is fascinating for legal policy wonks like me. I sometimes wonder if anyone else is paying attention.