What About Paris?™

Since that was written, state judiciary selection in America has remained largely election-based; as a result, elected judges, either trial or appellate level, still appear to have "shadow" constituents in the form of campaign donors. Impartiality is an unspoken issue in countless proceedings. And even first-rate state jurists of the highest character, and with the best academic and workplace credentials, must suffer the taint of that machinery. Some groups like the Philadelphia-based Pennsylvanians for Modern Courts, founded 20 years ago, still soldier on in the wilderness for reform.* Earlier this month, lawyers with NYU Law School's Brennan Center for Justice got high marks for publishing a report of proposed state recusal and disqualification standards**--a 50-page ten-point plan and analysis, both practical and scholarly--for elected judges. Last week, writing about the report, BLT's Tony Mauro in his post "The Recusal Remedy" quoted from the report's foreword. It is by Tom Phillips, a former Texas Supreme Court chief justice (appointed, elected and re-elected between 1988 and 2004), and now Baker Botts partner:

As the authors acknowledge, threats to judicial impartiality and the appearance of impartiality will persist no matter how perfectly a state structures its recusal process. As political pressures on the judiciary mount, most states should consider more fundamental changes to their systems of judicial selection. But until that day, improved recusal procedures are among the most promising incremental reforms.

(emphasis ours)

This blog has made no secret of the fact that we believe that, in the longer term:

(a) judges should never be elected (ever), (b) elected state judges pose dangers to clients which do business in more than one state or nation, (c) the notion that any dispute would be heard and decided by an "elected official" who has received election campaign contributions from some of the lawyers and clients before him is a national embarrassment (especially since these conflicts are rarely disclosed), (d) popularly elected state judges is an institution inconsistent with the fact that business is now done nationally and internationally, with "non-local" parties appearing frequently before American state courts, and (e) justice would be better served if all of the "affected" states reformed their judicial systems to select judges for life on the basis of merit, coupled with an impeachment safeguard.

In the short-term, and as a practical matter, sane and sophisticated business lawyers should bend over backwards to keep their global, multi-jurisdictional clients out of state courts, and before federal courts. We do think that recusal standards make good sense--the Brennan Center report is brilliant, persuasive--but the remedy for us is what Phillips termed the "fundamental changes" in the selection process. That's judicial appointment on a merit basis for life, similar to the federal selection process. No elections. No reelections. Ever.

The popular election of state judges is a national illness. We Americans are "in denial" about it. We are so heavily invested in it, and so used to it, that we are even incapable of experiencing the "oh-my-god" embarrassment it ought to cause us every day it still exists. And here's the rub, and a reason for pessimism: constitutionally, only the States can do anything about it.

*I travel in my work, much of it trial work, and am licensed in four states (DC, CA, MD, PA). Many Pennsylvania trial lawyers I know fall into one of two groups: (1) too caught up in the current judicial election system to validate or acknowledge Pennsylvanians for Modern Courts' existence; (2) too paranoid to even talk about PMC.

**James Sample, David, Pozen, Michael Young, "Fair Courts: Setting Recusal Standards", Brennan Center for Justice at New York University School of Law (April 2008).