Not in all quarters, but in many, the Court’s decision in Caperton v. Massey has been well received.  The facts of the case are arresting, the stuff of a Grisham novel, and added together, they make for a plausible plot about a ruthless, rich businessman spending heavily in a judicial election to buy a vote on a court. The Court, in an opinion written by Justice Kennedy, concludes that the case is “rare” and “exceptional," and that Due Process in these extraordinary circumstances compels recusal.

      So much for the result, which many—especially those depressed by the spending trends in judicial elections—find elating.  What of the opinion?

     In the audience for this opinion, among those happy with the result, there is a recognition that there are all sorts of things wrong with the craftsmanship.  One stands out: Kennedy repeatedly states that the businessman’s support consisted of "contributions" to the judge, when in fact it was delivered (all but $1,000) in the form of independent expenditures. Kennedy Op. at 1, 3, 13, 14-17, 19. The judge did not request the spending and had no role in its content or timing.  Under campaign finance law jurisprudence, this difference is a large one that bears specifically on the question the Court finds most compelling: the degree of gratitude the judge would be tempted to show to the donor.

     Rick Hasen believes that this misstatement must have been a mistake and imagines that it might be corrected prior to final publication. There is no reason whatever to imagine that it was an error, and thus no reason to expect a correction.  Kennedy knows the difference between a contribution and an independent expenditure, and, we can be sure, so do his clerks.  Chief Justice Roberts draws attention to the "error" in his dissent, giving Kennedy ample notice that his mistaken choice of label had been spotted.   Roberts Op. at 13.

     Now some might say that it hardly matters, but it does, a great deal, where the finding is one of the probability of "actual bias" in favor of the spender.  To find this probability where the support given was not requested, nor, for all we know, welcome, would require an aggressive move.  Less gratitude is owing when the gift given was not requested in the first place.  Kennedy solves the problem fairly brazenly.  He does not dispute the importance of the distinction, and he does not ignore it:  he decides to escape it altogether by mischaracterizing the spending.

     This brings us closer at the real problem facing Kennedy in crafting this opinion.  He relies on cases, the only ones at hand, that locate the due process in a judge’s ongoing interest in the outcome.  For example, a judge mat not profit personally from the decision (Tumey v. Ohio, 273 U.S. 510 (1927)); he should not act as both grand jury and ultimate trier of fact, sitting in judgment on his own indictment (In Re Murchison, 349 U.S. 133 (l955)); and the judge who charges a defendant with contempt should not be the one to preside over the trial of that very charge (Mayberry v. Pennsylvania 400 U.S. 455 (l971)).  This is not quite the same "temptation" that confronts the judge whose ruling could favor or disfavor a campaign contributor (or independent spender) whose support was previously given.  In that case, he has had the full benefit of the act of largesse; his ruling now gains him nothing more, except, quite speculatively, future support.  The question is only whether the need to repay the debt could cause him in all probability to act partially.

     Yes, the judge may be affected by the prior support, but the interest in his cause—the trade-off of action for benefit—is far more attenuated than under the controlling Due Process precedent.  On these facts, in this situation, the Court is testing the limits of its rationale to say that there is a "probability" of "actual bias" if bias normally follows from only a concrete, immediate interest in the outcome of the proceeding.

     This is a challenge for Kennedy, and it would be that much more of one if the financial support given the judge was admitted to be "independent."  So Kennedy lightens his burden by disregarding the factor of the independence, pretending that it is not an issue.  At least then, the judge’s interest presents more sharply:  he is the beneficiary of "contributions," he took something from the spender. 

     The indifference to the independence of the spending is important for another reason, in signifying what troubles the Court about the facts. The case is really about appearances—about how this situation looks to those looking on from the outside—even as the Court’s Due Process analysis is ostensibly concerned with the right of the litigant.  On the level of appearances, the difference between forms of financial support—between contributions and independent expenditures—is immaterial.  The public will be offended either way; public perception of the injury is the same, either way.

     Kennedy has long agonized about the tensions inherent in judicial elections between an "ideal"—a court operating free of politics—and the practical consequences of giving voters a choice.  In Chisom v. Roemer, he joined with the dissent against recognizing the application of section 2 of the Voting Rights Act to judicial elections.  501 U.S. 380(1991).  There the question of statutory construction turned in part on whether a judge could be considered a "representative" for purposes of that statute.  The dissent bristled at the notion:  this is not really, they argued, how we should see the role of judges, and Congress could not have meant for the term "representative" to apply to their function.

     In Minnesota v. White, 536 U.S. 765(2002), Kennedy did vote to invalidate a restriction on judicial campaigning—the "announce clause," limiting the expression of views on disputed social and political issues—but his concurrence betrays a great unease about judicial elections and the price paid for them in judicial dignity and the appearance of impartiality.  Minnesota is entitled to its choice, he wrote, and it cannot have it both ways, putting judicial candidates on  the campaign trail and then closely policing their speech.  But at the same time, Kennedy indicates that what is acceptable for candidates is not necessary acceptable for incumbent judges, even when campaigning for re-election: "Petitioner…was not a sitting judge but a challenger; he had not voluntarily entered into an employment relationship with the State or surrendered any First Amendment right."  536 U.S. at 796.

     And in New York State Board of Elections v. Lopez Torres, upholding a nominating procedure for State Supreme Court judges, Kennedy appended a reflection—what he terms a "closing observation"—on judicial elections.  128 S.Ct. 791, 803 (2008).  Once more this is the occasion for ambivalence, as Kennedy returns to "the persisting question" of whether judicial elections are "consistent with the perception and reality of judicial independence and judicial excellence."   He writes:"

The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges.  And it may seem difficult to reconcile these aspirations with elections.

Id.

     One must do what we can, he concludes, and since states may choose judicial elections, all interested parties—"the organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy"—must help to find ways to make the system work.  And here Kennedy is clear that he is speaking of both reality and appearances:  "If New York statutes for nominating and electing judges do not produce the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now."  Id. (emphasis added).

     In this most recent bout with judicial elections, in Caperton, Kennedy seems to have concluded that the Court should do its part to blunt one of the sharper edges of judicial elections—heavy spending—and to do so, as he expressed at oral argument, in the interest of  protecting the reputation of the judiciary ("our whole system is designed to ensure confidence in our judgments." Tr. at 33-34).  So he is proceeding with the only constitutional tool in the kit, Due Process, which requires him to posit a probability of actual bias against the specific litigant.  His analysis suffers for this attempt, as one might expect:  he must use the wrong peg for this hole and must pound it in, hard. 

     So it is most likely because contribution-expenditure distinction does not serve Kennedy’s purposes in this case, a judicial elections case, that he eliminates it from the analysis.  In the short run, this is lost in the applause for the result.  But in the long run, craftsmanship that is so results-oriented carries a price.

     One such price is confusion.  Does the end of the contribution-expenditure distinction here mean it is on the way out elsewhere?  Some think so.  At a minimum, there will be confusion in the meantime in an area of law, campaign finance jurisprudence, so messy that further disarray is to no one’s advantage.

     Another cost, ironically, is in the struggle for a resolution to the difficulties presented by judicial elections.  A public and a bar offended by the Caperton facts could demand—should demand—action to prevent re-occurrences.  Remedies could be radical (getting rid of judicial elections) or rule-based (revising recusal standards).  Either way, the states choosing a judicial election system would be accountable for their operation, and the public in whose name reform would have to mobilize for change and participate in a discussion of what that change should be.  Instead, the Court has removed the question from the public political process by casting it as a constitutional one of primary importance to the individual litigant.  It has disguised a large public question as a private wrong, moving the resolution from any public political forum to the federal courthouse.

     The majority tells us that it is acting, to address the exceptional case but, in truth, it's true motivation is to chip away at a major, consuming concern:  the impact on of judicial campaign spending on the perceived independence and integrity of state judiciaries.  This will encourage those with concerns about judicial elections to seek an expansion of constitutional remedies—reform by the back door.  And it will discourage frontal public and political engagement with the difficult issues presented by judicial elections.  Developments will proceed piecemeal and unpredictably, with all that portends for a coherently structured, efficiently functioning system. 

     Now there are softer, more forgiving voices.  Rick Pildes perceives the majority as acting to enforce "boundaries on the conduct of public institutions and actors...even if it is legally impossible to define those lines with clarity."  This is an appealing justification of its decision: without formal doctrine or tight reasoning to support its work, and relying as it does on provocative facts and the intuition of something gone wrong, the Court may well be left to assert that a "line" has been crossed and needs marking. 

     But this seems largely an elegant argument for the Court’s good faith.  It cannot answer the fundamental issue of craftsmanship and consequence; it cannot excuse the liberties that the majority takes with the presentation of the facts or with the unacknowledged flight from its own precedent. 

Bob Bauer