The Wisconsin Supreme Court adopted two proposals permitting justices to refuse to recuse themselves in certain situations yesterday. I support the substance of the two measures:
A divided Wisconsin Supreme Court voted today to adopt a petition to amend the Code of Judicial Conduct so that the receipt of a campaign contribution from a party in a proceeding cannot be the sole reason for a judge to recuse him or herself.
Similarly, the justices voted to amend the Code of Judicial Conduct so that a judge is not required to recuse him or herself where a party to the proceedings sponsored an independent expenditure or issue advocacy during the judicial campaign.
I believe a judge's ill-chosen refusal to recuse himself or herself in a case where the perception of a conflict of interest is involved should be that justice's personal decision - and fair game when it comes to electoral fodder in a retention election. That makes sense in a system of elected judges with contribution disclosure as a check in the system. It also, as the Wisconsin Law Journal noted, effectively codified current practice.
But I think a majority of the court did itself a disservice today - and will likely further inflame the ongoing furor over Justice Gableman (which built upon the frenzy over Justice Ziegler) - by adopting measures put forward by the very organizations that are major players in Wisconsin Supreme Court elections as of late:
The petition regarding campaign contributions was authored by the Wisconsin Realtors Association; the Wisconsin Manufacturers & Commerce offered the petition concerning independent expenditures.
In the present environment, this will be viewed as the parties to a conflict of interest writing and approving the rules permitting the conflicts of interest they've engaged in. Don't get me wrong - I think recent moves for recusal by some defense attorneys regarding Justice Gableman are rather dangerous games to play. But I think the high court, if it was savvy, would have crafted its own rules amending the judicial code in the end, especially in light of the ongoing drumbeat from the Wisconsin political left (whether it's warranted or not), extra scrutiny by the press, and even general concern by the electorate.
When measures supporting public financing of state judicial races and merit-based judicial selection systems are in the air, it would seem to behoove the judiciary to tread delicately. A failure to act in a manner that does not appear ethical, especially at a moment when the court is in the limelight, has the tendency to bring a reactionary, populist backlash (or is it not populist because one of the ends sought is unelected judges?) seeking legal regulations of the conduct involved.