DRI Report Recommends New Recusal Procedures to Deal with Flood of Judicial Campaign Cash

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A new report by the defense bar warns that judicial independence and integrity are threatened by court funding cuts and the increasing flow of money into judicial elections.

Almost half of state courts are operating under hiring freezes, while others have cut staff pay, implemented judicial furloughs and cut courthouse hours, according to an executive summary (PDF) of the report, “Without Fear or Favor in 2011.”

“The rationing of justice is now occurring in many of our state court systems across the country as a result of state budget cuts brought on by the recession,” according to the report (PDF) by the Judicial Task Force of DRI—The Voice of the Defense Bar. A press release has more information.

The report decries the perceived influence of corporate and union money flowing into judicial elections, spurred by the Supreme Court’s January 2010 decision in Citizens United striking down restrictions on corporate campaign spending. Campaign contributions in 2010 state supreme court retention elections reached all-time highs, creating the appearance of “a judiciary indebted to campaign contributors, who include attorneys and parties likely to appear before the winning candidate,” according to DRI.

Increased judicial campaign spending has also pushed advertising to new heights, the report notes. In 2008, a record of nearly $20 million was spent on television ads in races for 26 state supreme court seats. More advertising also means more attack ads, raising additional concerns. “Attack ads eat away at judicial independence and harm the public’s perception of our judicial system because they focus on the outcome of controversial decisions rather than on the court’s legal analysis in arriving at its holding,” the report says.

The DRI report includes several recommended solutions. They call for:

• Required disclosure of those who fund third-party attack ads against judges.

• Automatic disqualification of judges who receive campaign contributions above a specific threshold from a party or lawyer appearing before the judge.

• Creation of an independent group or panel of judges at each level of the state’s court system to hear and decide disqualification motions.

• Expanded use of nonpartisan judicial performance evaluations to provide information to voters in the 39 states that elect at least some of their judges. The evaluations, now used in 21 states, can also help judges improve and are helpful even in states where judges are appointed, according to the report. The commissions that perform the evaluations should be made up of both lawyers and nonlawyers; should strive for racial, political and gender balance; and should approach their work in a politically neutral manner.

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