The need for these reforms is clear. The amount of cash being spent in many states’ judicial races has skyrocketed into the millions, with much of the money coming from lawyers or corporations with a financial stake in how the courts rule. This growth in campaign spending reflects the increasingly politicized, partisan nature of judicial races.
Existing judicial ethics rules aim to avoid the appearance of bias on the bench, generally requiring judges to avoid hearing cases or engaging in political activities that could raise doubts about their impartiality. The New York Legislature recently passed a bill that brings more transparency to judges’ conflicts of interest. Reform advocates in Wisconsin and North Carolina, including myself, have petitioned courts or lawmakers for ethics rules that require judges to recuse themselves from cases involving campaign contributors above a certain specific donation threshold. The Brennan Center for Justice, which advocates for judicial ethics reform, found that only a few states have such ethics rules.
Similar efforts at the federal level have so far come to nothing. In a procedural vote, Republican senators blocked consideration of the wide-ranging H.R.1, a House-passed democracy reform package with a provision that would — for the first time — subject U.S. Supreme Court justices to the same ethics rules that bind other federal judges.
High Courts in the Spotlight
At the state level, the most egregious conflicts of interest result from state supreme court elections. High-court races saw more than $20 million in spending in 2020, according to the Brennan Center. Campaign cash poured into pivotal races in Illinois, Michigan and Ohio. The previous election cycle saw even more spending, and eight of the 10 biggest spenders weren’t transparent about the source of their funding.
This money can lead to glaring conflicts of interest. In 2009, for example, the U.S. Supreme Court ruled that the federal constitution required West Virginia Supreme Court Justice Brent Benjamin to sit out a case involving coal mogul Don Blankenship, who had spent $3 million to help Benjamin get narrowly elected. Benjamin had cast a pivotal vote to overturn a verdict against Blankenship’s company.
After the West Virginia ruling, only a few states reformed their ethics rules to address the issue of campaign cash. Reflecting the U.S. Supreme Court’s standards, those states’ new rules require recusal if the amount of the campaign contribution and other circumstances could lead to the appearance of bias.
Some state high courts, however, moved in the other direction, weakening their recusal rules as the amount of money being spent in judicial races increased. In 2010, the conservative justices on the Wisconsin Supreme Court adopted a rule, written by their big-business supporters, that says campaign contributions cannot be the sole basis for a judge’s recusal.
Within a few years, big-business groups spent $10 million to back the court’s conservative majority. When those groups were being investigated for campaign finance violations, the justices refused to recuse themselves from a lawsuit challenging the probe. Prosecutors even raised the question of whether two of the justices’ campaigns may have violated the same campaign finance law with the same groups. The court shut down the investigation and struck down the campaign finance law.
In 2017, the Wisconsin Supreme Court rejected a petition from dozens of retired jurists to require judges to avoid hearing cases involving campaign contributors. Since then, recusal reform has become a prominent issue in the state’s high-court elections, and two recently elected justices pledged to support reform. The state chapters of Common Cause and the League of Women Voters have been advocating recusal reform for years.
The Embarrassment Exception
Recent reform efforts have taken different paths in other states. The bill signed in December by New York’s Democratic governor, Andrew Cuomo, requires judges who recuse themselves due to a conflict of interest to provide a reason for the decision, unless it could embarrass the judge or the judge’s relatives. Some attorneys claim that local judges haven’t fully complied with the new rule. One judge who was reluctant to comply argued that the restriction is unconstitutional, but an ethics oversight committee said the judge must first make a “legal determination” that it violates the state constitution’s separation of powers.
This year, Republicans in the Montana Legislature passed a bill requiring judges who have received $91 or more in the past six years from any lawyer or party in a lawsuit to recuse themselves, but the new rule was recently blocked by a state court. The bill was one of many changes to the courts that the state’s lawmakers considered. A proposed constitutional amendment, for example, would have reshaped the state’s judicial ethics oversight commission and given it the power to unilaterally remove judges. Chief Justice Mike McGrath, a Democrat, called it “an inquisition, plain and simple.”
In North Carolina, activists have asked both the Republican-controlled Legislature and the Democratic-controlled state Supreme Court to strengthen judicial ethics rules. A recent democracy reform package proposed by a coalition of voting rights and good government advocates included a section that I authored on judicial ethics reform.
In the report, I noted that elected judges in most states must limit direct fundraising to their campaign staffs. But since 2004, North Carolina judges have been allowed to personally ask lawyers and corporations for contributions. In 2014, one judge even told a room packed with wealthy donors, “I look forward to seeing you in court.”
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