Why Oppose a "No Brainer"?

Yesterday, the United States Supreme Court rendered a decision that appeared to be a “no brainer.” The Court considered Caperton et al v. A. T. Massey Coal Co., Inc., a case where a party was appealing a Republican Judge’s refusal to recuse himself. The case stemmed from a Judge who received over three million dollars in campaign contributions from the CEO of the company which was a party to the suit. The CEO contributed more than all of the judge’s other campaign contributors combined. He even contributed more than the Judge. The Judge refused to recuse himself from hearing the appeal of a case involving the CEO’s corporation, were the company was appealing a $30 million dollar judgment awarded against it by a jury. In fact, the CEO began contributing to the republican judge’s campaign shortly after the judgment was awarded by the jury. The Judge was ultimately elected Chief Judge of the appellate court and was on the panel assigned to hear the case involving his primary contributor’s corporation (Chief Judges customarily control the assignment of cases). When the recusal motion was filed, the Judge stated that he could be fair and denied the motion. To no one’s surprise, the $30 million dollar judgment was overturned.

The United States Supreme Court considered the facts of the case and reasoned that “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” The Supreme Court SUSTAINED! the objection to judges who appeared “bought and paid for” and reversed the decision of the state court on the grounds that the recusal motion should have been granted. The Supreme Court’s decision promotes integrity in the Courts and may restore public confidence in due process. This decision was a “no brainer.” But surprisingly, the U.S. Supreme Court decision was 5 to 4 - split mostly along ideological lines.

For years, money has influenced the political process in the United States. Attempts to regulate campaign finance date back to 1867, with the first successful attempts to regulate and enforce campaign finance originating in the 1970s. The Federal Election Campaign Act of 1972 required candidates to disclose sources of campaign contributions and campaign expenditures. In 1974 it was amended with the introduction of legal limits on contributions and the creation of the Federal Election Commission. It attempted to restrict the influence of wealthy individuals by limiting individual donations to $1000 and donations by Political Action Committees to $5000. Other major campaign finance regulation was passed in 2002. However, this legislation and all other federal legislation were limited to federal elections.

Even judicial elections in state governments are subject to undue influence. The Judiciary is supposed to be fair, independent and impartial. A fair and impartial trial is universally desired. And as the court stated, “There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Allowing such a practice undermines the fairness, as well as the perception of fairness, of our judiciary. Consider the following example. A person (defendant) is accused of harming a wealthy man and is charged with a crime. The wealthy man finds out the court in which the defendant's case is assigned and begins contributing to the campaign of one of the candidates for that court. The wealthy man’s candidate wins the election and the wealthy man is the winning candidate’s largest campaign contributor. The defendant's case heads to trial with the newly elected judge presiding. The Judge rules against the defendant on several contested issues during the trial. The defendant is convicted and sentenced to the maximum sentence by the newly elected judge.

Very few people would fail to see that there was some conflict of interest in this example mandating a recusal. However, prior to this decision, the test was largely subjective. If the judge thought he could be fair, he could deny the recusal motion. The four Supreme Court justices who dissented in this case- Scalia, Thomas, Roberts and Alito; argued that this case would encourage litigants to challenge the impartiality of Judges and would led to protracted litigation on this "ancillary issue."

The dissent's argument rings hollow. In most federal courts, parties are required to disclose any interested parties to the litigation. Many judges routinely recuse themselves if they own stock in a company which is the subject of a suit. The threshold for conflicts is very low. In federal courts, there has not been an explosion of litigation on the recusal issue. Furthermore, if there exists a conflict of interest, then due process would require that it be litigated or address by the Court. It is not an "ancillary issue." It is essential for due process and fair trials. The perception that the wealthy are afforded more justice is a reality that needs to change. The real reason for the split in this case where the decision seems so obvious is resistance to campaign finance regulation. In a nut shell, resistance to restrictions on campaign financing is resistance to restrictions on corporations. Most of these justices were appointed by the Bushes who were bought and paid for by oil interest and large energy companies. Their opinions and decisions throughout their judicial careers show that they are beholden to large corporations and corporate interests. They look to the "letter of the law" when it furthers corporate interest and the interest of the wealthy. And they feel that the wealthy should be able to influence the political process and even the Courts. It is shameful politics by the dissent...shameful pandering to corporate interests.

Although campaign finance laws have been ineffective to stop the buying of politicians, the Court’s decision may slow the buying of judges and outcomes in courts.

Judges for the People, Of the People, From the People

Surprisingly, the nomination of Second Circuit Court of Appeals Judge Sonia Sotomayor by President Barrack Obama to fill an anticipated vacancy on the United States Supreme Court has spurred much controversy. At the center of the controversy is a 2001 speech in which Judge Sotomayor said she would hope that "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who has not lived that life." Judge Sotomayor’s confirmation to the Court would make her the first Hispanic and only the third woman to serve on the Court in United States history. It is the potential for added diversity and a differing view which makes her appointment unique and important for the future of the United States of America.

She was born June 25, 1954, in the Bronx, N.Y., and raised in the Bronxdale housing project by parents from Puerto Rico. Unlike many other federal appellate court judges, she does not hale from a privileged background. Yet, she graduated from famed Cardinal Spellman High School in 1972, from Princeton University summa cum laude in 1976 and from Yale Law School in 1979. While at Yale she served as an editor on the school’s law review –a position reserved for students in the top five to ten percent of the class. Arguably, her credentials exceed that of all of the current Judges on the United States Supreme Court. Definitely, her judicial experience exceeds that possessed by any current Supreme Court Justice prior to their nomination to the high court.

Yet, because of one statement made eight years ago, the so-called champions of the constitution have called her a racist and have argued that her nomination ought to be withdrawn. These champions of fiction have espoused the fictitious notion that America needs rigid Judges who will interpret the letter of the law and are not influenced by race and gender. Nonsense. The fact that she recognizes that her background gives her a different vantage point ought to be applauded, not decried. If anything, her statement gives us hope that she will not be another Justice Clarence Thomas; offering conservative Justices obsequiousness as they dismantle civil liberties and civil rights. Moreover, having a Judge who can empathize with the people their decisions affect just seems to make common sense. The last thing America needs is the appointment of an incurious Queen who looks down from an ivory tower of privilege and crushes the struggles and hopes of everyday Americans.

Just last Thursday, I was arguing an appeal of a seventy-five year sentence in Matagorda County, Texas before the Thirteenth Court of Appeals of Texas. The Court is seated in Corpus Christi, Texas and has traditionally held argument there. However, the Chief Judge and other Judges decided to have oral arguments in cases near to the Counties where the issues in controversy occurred. The Court theorized that having arguments in Matagorda County of cases which occurred near that county would allow greater access to the Court. Litigants and citizens affected by the court’s decision were afforded the opportunity to attend oral arguments. In fact, more than twenty members of my client’s family attended oral arguments. The Thirteenth Circuit’s approach, which is different than most appellate courts, allowed greater inclusion in the process. Interestingly, all three of the Judges on my panel were of Latin decent. Perhaps their backgrounds and life experiences caused them to place value on inclusion. The Chief Judge, who happened to be on my panel, addressed the audience in Spanish prior to the commencement of oral arguments.

Having argued before all-white appellate panels all of my career, their questions were just as pointed and showed the same grasp of the issues. However, there was a sense of fairness that I do not always encounter. There appeared to be little or no questioning seeking to illicit responses to influence other Judges. There was no posturing. They saw the big picture. There was a sense that they were interested in finding out the truth.

We need new ideas and experiences on the high court. If her background and history are any indication, Judge Sotomayor may offer the high court some of that same freshness. Having Justices birthed in interpreting the constitution with antiquated ideas, approaches and ideologies will forever contract our country in infancy. The “Founding Fathers” recognized the need to interpret the Constitution in light of changing circumstances. Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors." Obama’s appointment of a unique Justice and his objections to “more of the same” should be SUSTAINED! Whether or not the "good ole boy" network wants to accept it, America is changing. Our nation’s survival and continued vitality are dependent on how well we adapt to that change. Judges like Sotomayor may give us the best opportunity to do so.