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Tuesday, January 29, 2008

Disqualifying Judges through Contributions

In his Sidebar column today in the NYT, Adam Liptak spotlights a forthcoming study of judicial voting in Louisiana by Tulane prawf, Vernon Palmer. Palmer thought it improper that the Justices on  Louisiana's Supreme Court failed to recuse themselves in cases where they received campaign donations from one of the litigants. After the Justices refused to recuse themselves, Palmer conducted a study showing that the incidence and amount of a campaign contribution co-related well with which way the Justices voted in the cases.

On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time...Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

In response to other studies of possible erosion of judicial virtues and suggestions by Justices Breyer and Kennedy that campaigning is in tension with judicial responsibilities, Adam writes that the cure for this problem is relatively straightforward:

But you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts around the nation. All you need to do is listen to Professor Palmer. If a judge has taken money from a litigant or a lawyer, Professor Palmer says, the judge has no business ruling on that person’s case.

This makes some sense, but to me it raises some questions of incentives and strategy. If I represent a client with a very valuable "pro-business" litigation position, why won't I suggest early on that she give money to the campaign of the "economic populist" running for re-election? That way she can use the taint rule to effectively disqualify the judge who will vote against her if her litigation position is worth more to her. In other words, I worry the rule which Adam and Professor Palmer endorse works too broadly, and will give a cheap way to DQ potentially hostile judges. A rule of necessity issue might also come up if someone gives campaign donations to all the justices or a majority of them. Am I right in thinking this? If so, are there other plausible solutions?

Btw, check out Adam's other cool article today on Bail Bondsmen.

Update: Adam informs me via email that we can reduce such "strategery" by giving the adversary the option of requiring recusal in such circumstances. That's a shrewd point. Still, I wonder if that removes the problem when there are information asymmetries; I also worry it will encourage some wasteful gamesmanship in any event. But what's the alternative: abolish judicial elections?

Posted by Administrators on January 29, 2008 at 10:29 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Dan Markel | Permalink


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It goes without saying that a large proportion of Louisiana supreme court cases come from the lower courts. And, it also goes without saying that just as campaign contributions can (perhaps do) sway Louisiana supreme court justices, contributions can also sway lower judges’ rulings. Hopefully, the upcoming Tulane Law Review which shall divulge facts about campaign contributions swaying judges' decisions will set off a probe of Louisiana's Judiciary.

Although it might be hard to prove whether contributions or bribes or perks influence judges’ decisions, IT IS NOT HARD to prove facts of manifest unfair, contrary-to-law rulings which occur far too often in Louisiana judges’ courtrooms! Further, it is glaring that some judges are clueless about jurisprudence, some are inept, and some judges deliberately issue unjust rulings for favored litigant(s).

Also, I recall the incredibly disgusting views of Louisiana’s Justice Jeannette Knoll’s dissenting opinion about removing former judge Wendell Miller from the bench which seemed full of misplaced sympathy for Miller’s loss of job, and disregard for people ill-affected because of Miller’s proven lack of judicial ethics, including having sex in his chambers with another man’s wife. Knoll seemed to unable to conceptualize the bribes and favors Miller had to be under compulsion to disseminate –and accommodate for others to commit malfeasance while covering for Miller, as well as hush money and favors and abusing his public position. The fact that Miller’s escapades were even reported in the news, and a lawsuit award paid after Miller became sued was not enough for Justice Knoll to conclude that Miller’s days as a judge should have been history long ago.

Yet, whether cronyism, or contributions or whatever, the Federal as well as the State court systems in Louisiana appear to exist to gratify judges and NOT to facilitate justice. (Also see links concerning the long overdue call to impeach federal Judge Thomas Porteous.)

Also, unfortunately, niceties of colleague courtesy hinders attorneys from stating disparaging facts pertaining to fellow attorneys, even when such facts are irrefutably true. As such, wiggle room helps guilty lawyers and judges obfuscate activities of judicial collusion. But, res ipsa loquitur facts and evidence of court connivance cannot, nor should not be prettied up -especially when wiggle room steers away from exposure of wrongdoing, and steers away from corrective measures.

But even more critical, is that people and businesses have been irreparably harmed because of prejudiced, unjust judicial rulings. For myself, and people like me, I vigorously raise my voice and my pen; and name names –along with what they did / do on my website! (If Louisiana had had an Attorney General other than former Charles Foti, a lot misfeasance would have been revealed since consumer law violations are rampant in this State.) At any rate, the Louisiana Judiciary may look the other way, and the supreme court of Louisiana may continue its biased and atrocious way of doing things, but, even as it occurred for Senator David Vitter, the truth will continue to come out.

Consistent with Louisiana’s infamous corruption title– the court systems of Louisiana as a whole is a despicable regime. I personally believe that –as long as corruption, judiciary tryanny, and cronyism remains alive and well here –rather than pursue a Louisiana law degree, a person is better off bagging groceries at a friendly local grocer.

Unequivocal, prima facie facts and evidence of judicial corruption is posted in plain view at www.lawgrace.org. In fact, the following are links to certain postings which corroborate my accusations about the Civil court systems in Louisiana.
Supreme Court of Louisiana Writ Application

Odor of Judicial Corruption / Cronyims in Louisiana 4th Circuit

Federal Judges' Pay Raise; New Orleans Federal Judiciary Call To Impeach

United States Chief Justice Roberts, Call to Impeach Judge Thomas Porteous

New Orleans’ Corruption Watchdog? Inspector General?

Judicial Corruption, Deception, Attorneys Brett Furr, Herschel Adcock, Matthew Mullins, Freddie Mac, Real Estate Flipping, etc.

2006O2361 In RE: Judge Wendell R. Miller

Dangerous Clerk of Court, Dale Atkins: Killing Us Softly

Anatomy of Judicial Corruption, Motion for Reinstatement

Posted by: Barbara Ann Jackson | Feb 13, 2008 10:41:39 PM

I wonder why either of the two following solutions to election finance are not adopted:

(1) public financing of elections, public mandated air time for candidates. No private financing.


(2) private but anonymized financing. Real anonymizing would be difficult but feasible, especially in larger races. And then the money=free speech concerns would be alleviated--you can express your point of view by giving as much dough as you want to your candidate, you just can't let them know that you gave the money, so there's no back scratching in return, and you'd avoid much of the corruption that characterizes the current system.

Either system would represent a huge savings when one considers how much pork is related to paybacks for campaign contributions.

Posted by: Bart | Jan 31, 2008 9:25:52 AM

There are only a small number of state judicial elections every year, so shouldn't most largish corporations give some small amount to all the potential judges' campaigns? Then no one will be left to judge their actions! MUAHAHAHAHAHAH!

Posted by: billb | Jan 29, 2008 4:44:01 PM

Yes, Jim, but how do you control for all the variables you've listed? At some point, enough correlation can give rise to an inference of causation. Unless, you know, you're Hume.

Posted by: Anonobvious | Jan 29, 2008 4:30:02 PM

I'm not persuaded that this study has adequately controlled for the many kinds of alliance that lead someone to make contributions to judges' campaigns. The controls they claim to have made involve cases in which neither side gave money to campaigns, and differentials in the amount of campaign contributions. But both of these variables correlate almost as strongly with what might be called the 'judicial philosophy' of the litigating party as the variable being tested. Surely cases involving campaign-uncontributing parties tend to have very different kinds of questions involved than the cases under scrutiny; likewise, small donors are likely (almost ipso facto) to have smaller interests in the judicial philosophy of judges they happen to support.

Correlation is not causation. Lather, rinse, repeat, and begin to require all media professionals to attend daily chanting sessions of those four words.

Correlation is not causation.

Posted by: Jim von der Heydt | Jan 29, 2008 1:24:53 PM

"But what's the alternative: abolish judicial elections?"


Posted by: C. Zorn | Jan 29, 2008 11:35:21 AM

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