“Reciprocity, Denial, and the Appearance of Impropriety: Why Self-Recusal Cannot Remedy the Influence of Campaign Contributions on Judges’ Decisions”

Tom Susman has posted this draft on SSRN (Journal of Law and Politics).  Here is the abstract:

The system of privately financed elections of judges in most states across the country has long been controversial, with both the scholarship and advocacy relating to this subject directed toward identifying the problems of public perception and potential for biased decisions and then focusing on solutions that range from merit selection to public campaign financing to recusal. The Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. addresses the problem by finding a due process violation when a contribution or donation is likely to have a “significant and disproportionate influence” on the judge’s election. At the same time, the Court’s decision in Citizens United v. FEC opens the door to unfettered corporate support for (or opposition to) judicial candidates.

This essay examines from a social science perspective the potential for campaign contributions to undermine judicial impartiality as a result of unconscious operation of the principles of reciprocity and denial. The author concludes that these principles combine to create a probability that judges will be influenced by campaign support from lawyers and parties appearing before them, even if the amounts of money involved are not “significant and disproportionate.” Thus, reliance on the judge’s decision to recuse – under almost any standard – will likely be inadequate to combat that influence. In states that do not abandon judicial elections, the potential impact of the reciprocity principle might be mitigated by rules preventing assignment of a case to a judge who has received contributions from a party or counsel, by requiring judges to make public at the commencement of consideration of any case or appeal any donations or contributions by parties or counsel, and possibly by a statement that such contributions will not affect the judge’s impartiality.


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