Just over two years ago, the U.S. Supreme Court heard oral arguments in Caperton v. Massey, a case involving the ramifications of soaring campaign expenditures in state judicial elections. Caperton arose out of a West Virginia supreme court justice’s failure to recuse himself from a case against Massey Coal Company – despite the fact that Massey’s CEO had spent over $3 million in support of the justice in the last election. The Caperton Court ruled that the justice’s refusal to recuse himself violated the litigants’ right to a fair trial. Following Caperton, calls for reform have been widespread. However, as a recent report by the Brennan Center for Justice details, meaningful change has yet to materialize.
Post-Caperton reform has been especially slow in West Virginia, the situs of the initial controversy. In Caperton’s wake, West Virginia Governor (now Senator) Joe Manchin convened an Independent Commission on Judicial Reform, chaired by former U.S. Supreme Court Justice Sandra Day O’Connor. The Commission’s report eschewed altering in the way judges are selected in West Virginia, proposing more modest reforms, including the establishment of an intermediate court of appeals and a public financing pilot program for one of the two open supreme court seats in the 2012 election. The Legislature, however, has declined to authorize an intermediate appellate court and only $3 million has been allotted to the public financing pilot program. In 2010, the West Virginia Supreme Court released revised rules for appellate procedure, but none of these dealt directly with the recusal process.
Though recent events continue to show the perils of the politicization of judicial elections, momentum for reform seems to have slowed. As judicial campaigns become more costly – and more contentious – the U.S. Supreme Court may soon have a chance to refine what due process requires in the context of judicial elections.
http://statejournal.com/story.cfm?func=viewstory&storyid=95854
http://sundaygazettemail.com/News/201103150658
Any so-called reform strategy that does not involve meaningful citizen oversight is more a reshuffling of power over America’s judiciary than judicial reform.
I am a founder and co-administrator of National Forum On Judicial Accountability (NFOJA). NFOJA promotes vesting randomly selected, adequately trained, rotating groups of private citizens with responsibility for discipline of state judges.
Other real judicial reform is underway in that NFOJA is spearheading symposia on whether adherence to the doctrine of stare decisis is reasonably assured in America given the: 1. considerable discretion vested in federal trial judges through the “plausibility pleading” requirements of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal; 2. dynamics of judicial self-discipline; and 3. impediments to effectively challenging apparent judicial motives and / or bias, including limitations on lawyer free speech rights.
While not directly on point, an article I recently wrote suggests these circumstances leave many prospective appellants in the difficult if not untenable position of predicating legal error on exercises of discretion attendant to plausibility pleading. (See: Zena Denise Crenshaw-Logal. 2011. “The Official End of Judicial Accountability Through Federal Rights Litigation: Ashcroft v. Iqbal” ExpressO Available at: http://works.bepress.com/zena_crenshaw-logal/1 ).
Ultimately our symposia participants will address the likely impact of that arguable paradox on appropriate adherence to stare decisis. Feel free to visit NFOJA for details.