Suppose a wealthy individual or group spends $3 million in independent expenditures backing a particular replacement for Justice Stevens. To make it analogous to Caperton, let’s say the funds are given to a third party such as Alliance for Justice, which is active in fighting for a judicial nominee. Assume, then, the wealthy donor has a case where a personal interest is at stake. Should the presumptively disfavored litigant have a Caperton-style ground for disqualification of the justice because massive independent expenditures were made to support that justice’s confirmation and appointment?
I think almost all of us would say yes, particularly considering the amazing amount of money an individual would have to spend in a Supreme Court appointment process to have as much influence (financially) as Blankenship had in Benjamin’s election. Blankenship spent “more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee,” according to Justice Anthony Kennedy’s majority opinion for the Supreme Court.
If that’s the bar one has to hit before his influence is considered “a serious, objective risk of actual bias,” that’s probably an extremely high bar for a Supreme Court nomination (though there’s no real way to tell what’s being spent on these nominations — more on that in a bit). If I, as a criminally negligent coal baron, contribute only exactly as much as all other supporters of the guy on my side, is that OK? Or does a plaintiff have a case to call for my judge’s recusal? It’s hard to tell from Caperton.
This might seem a little academic, were it not for two things: First, we clearly have a judicial nomination battle about to start; second, the Supreme Court — the same one that pointed out the real and present danger of money influencing an elected judge in Caperton — has just ruled in F.E.C. vs. Citizens United that corporations are free to spend as much money as they want in American elections.
Now, Supreme Court justices aren’t selected by election, at least not directly, so Citizens United doesn’t per se mean anything for these selection processes. Right now, nearly any group is allowed to spend just about anything they want on promoting or opposing a Supreme Court candidacy. So why hasn’t that loophole been closed?
I think it’s because, for a long time, we’ve thought, OK, bribery is against the law, so we’re covered on that end for Supreme Court justices, and there’s no monetary reason for them to pay back an old contributor once they’re securely on the bench.
But shouldn’t there be better grounds for considering who has to recuse him- or herself from a case? Do we deny the lingering effects of money in these increasingly campaign-like battles? Shouldn’t there be a system for monitoring who’s spending what during a judicial “campaign”?
Consider, for example, the U.S. Chamber of Commerce. It’s the biggest spending lobbyist in the United States, having spent almost $150 million on it in 2009, with another $35 million going directly into the 2008 campaign. Its Institute for Legal Reform is, independently, also in the top twenty big spenders on lobbying, having dedicated nearly $30 million to it in 2008 alone. The ILR is dedicated to “working to change the laws, but also changing the legal climate. ILR supports:
- federal and state legislative reforms
- public education campaigns
It doesn’t seem impossible to imagine adding “campaign efforts for those who support legal reform” to that list, does it? Whose definition of legal reform would that be, though? Sure, ILR is dedicated mostly to Tort Reform — but its mammoth parent has an interest in a whole host of legal issues.
So, if the U.S. Chamber of Commerce and the ILR decide that they want to run television commercials in every major market in the U.S. decrying the anti-American views of someone like, say, Elena Kagan or Diane Wood, in hopes of seeing a more pro-business (or anti-environment, or anti-labor) nominee, it sure sounds like they can do it. They can also, now, thanks to Citizens United, run direct attack ads against any senator who might support a non-U.S.C.C.-approved nominee and offer huge amounts of cash to the campaigns of those that do.
If those ads then result in senators filibustering non-U.S.C.C. judicial candidates in favor of someone more “pro-business,” and that nominee becomes a Supreme Court justice — would that justice have to recuse him- or herself every time a case related directly to the Chamber’s interests came up?
Under Caperton, maybe not — because you’d first have to prove that the relative amount being contributed was overwhelming. It would be pretty hard to prove exactly what expenditures anyone was making in the nomination battle. There’s no Federal Elections Committee to file a quarterly report to, and those contributing to a nomination campaign also don’t have to file as lobbyists. For now, it seems possible that a group could pour an unlimited amount of money into a judicial nomination fight without any oversight whatsoever — meaning that, were one to ask for recusal at a later date, it would be very difficult to prove what had been spent in the first place. Therefore the sanity of Caperton means almost nothing when it comes to the Supreme Court.
I’m not sure that Citizens United will actually show its ugliest side in the upcoming confirmation battle; behemoths like the U.S.C.C. need some time to figure out how to play in previously closed arenas. By the time the next Court question comes up, though, I think they’ll be more than ready. All it takes is targeted support in any election year. I think they’re going to knock Don Blankenship out of the water with their contributions and manipulations of the system from state courts on up.