Caperton and campaigns for the U.S. Supreme Court
Several political scientists have compared the federal judicial appointments process to state elective judicial campaigns. There are media campaigns with a blizzard of op-eds and directed advertisement in particular states, attack ads, lots of spin, and fund raising appeals, all with the ultimate aim of making it more or less likely that a particular individual will occupy judicial office.
In semi-retirement, Justice Sandra Day O’Connor has criticized state elective judiciaries and the effect money and campaigning have on state-level judicial independence. I’m going to venture a guess that far more money is spent supporting/opposing a campaign to get a justice appointed to the U.S. Supreme Court than to any particular state supreme court race. In light of the fact that federal appointments campaigns increasingly resemble state elective campaigns, should Justice O’Connor’s concerns about the influence of money on judicial independence extend to the appointment campaigns waged over the federal judiciary?
In Caperton, Don Blankenship spent some $3 million – principally through a 529 and independent expenditures – supporting a candidate for the West Virginia Supreme Court while opposing another. West Virginia voters eventually elected Justice Benjamin, the Blankenship-backed candidate, to the state supreme court. Subsequently, a plaintiff moved to have Benjamin disqualified from a case in which A.T. Massey Coal Company was a defendant because Blankenship was the company’s chairman, CEO, and president. Benjamin then voted with the majority in favor of Massey. The U.S. Supreme Court said that the Due Process Clause (the one in the 14th Amendment) compelled Benjamin’s recusal because of the probability of actual bias resulting from a debt of gratitude toward Blankenship for his financial support.
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? Caperton said that the context of the judicial race was significant, namely, the relative size of the expenditures in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election. So, granted, we would have to be talking about some real outlays of cash in the federal appointments contest. But would it mandate disqualification?
Assuming it could possibly, would such information supporting a Caperton claim be readily obtainable in the appointments context? Perhaps someone familiar with federal election law could say, but are expenditures in favor of federal judicial nominees even reportable under FECA? I assume not—there is no candidate for election, just a nominee appointed in an election-like environment—but if not, in light of the needs of a Caperton-type inquiry, do we now need laws that require reporting of such expenditures? Further, if a Caperton disqualification extends to political campaigns for appointive judicial office, ought it to matter whether the individual’s interest is strictly pecuniary, or do ideological interests count too? What if one’s ideological interests align with more remote financial interests (e.g. supporting a nominee for pro-environmental positions, but also having a financial stake in green energy)?