“A fair trial in Louisiana can be virtually guaranteed if both sides have come up with a decent contribution.”

No recuse for conflict of interest
April 7, 2006

Only a crooked judge would automatically rule in favor of the side that gave him a campaign contribution.

Most judges, of course, are on the level, so they carefully consider the law and all relevant facts. Then they rule for the side that came up with the dough.

If you think that view of judges is unfair, you must be one. The public takes it for granted that campaign investments pay juridical dividends. Attorneys snapping up fund-raiser tickets believe it too, else they'd keep their money in their pockets.

Some judges think that they are loved for themselves and that it is not in hopes of an advantage that attorneys or their clients come up with campaign money. Those judges may also believe that their deliberations are unaffected by considerations of pelf. But it is all self-delusion. They know who their benefactors are and, consciously or otherwise, will sometimes trim their sails accordingly.

That does not mean the system is hopeless corrupt or that miscarriages of justice are commonplace; merely that, so long as judges must run on other people's money, total objectivity is not in nature.

Judgeships will remain elective for the foreseeable future, the campaign for "merit selection" being apparently in abeyance. The idea of appointing judges never caught on in Louisiana anyway, because we like the idea of electing judges, even if we don't trust them afterwards.

Tulane law professor Vernon Palmer, who last hit the public prints when he ran for mayor four years ago, has come up with a proposal to remove the taint of cronyism from the justice system. Being one of the few who are not running for mayor this time, he has had time to present his plan to the seven justices of the state Supreme Court, who could implement it on their own accord, no messy legislation or constitutional amendment required.

Palmer quotes U.S. Supreme Court Justice Anthony Kennedy's remark, "If there is a perception or the reality that courts are influenced in their decisions based upon campaign funding sources, we will have a crisis of legitimacy, a crisis of belief, a crisis of confidence." That's about where we stand in Louisiana right now, Palmer avers.

His suggestion is a new rule requiring judges to recuse themselves from cases involving litigants or attorneys to whom they are beholden for campaign contributions.

Judges are already required by their code of conduct to avoid "the appearance of impropriety in all activities" and to "refrain from financial and business dealings that tend to reflect adversely" on their "impartiality." To understand how this can be squared with pocketing moolah from an attorney and then ruling on his motions would require the wisdom of a judge.

The justices of the state Supreme Court have never objected to what seems a clear violation of the canons, possibly because they have their own campaigns to finance.

To be fair to the Louisiana bench, let it be clear that there are many cases in which the parties meet on totally equal terms. A fair trial in Louisiana can be virtually guaranteed if both sides have come up with a decent contribution.

The Supreme Court justices have not responded to Palmer's suggestion, which he submitted last June and again in December, but it would clearly be awkward for them to endorse it. That would be a tacit acknowledgment that the system over which they preside is ethically lacking.

It would also cut off the money supply for them and all the lower court judges. If everyone is required to play on a level field, there is little incentive to open the pocketbook.

Palmer's idea would do nothing to combat the worst excesses of the bench, and his proposal is far too modest to have saved, say, the Jefferson Parish jurists currently in the federal pen. But it would certainly boost public confidence in the judges who remain at large.

Copyright 2006, The Times-Picayune
Publishing Corporation

From: James Gill, "No recuse for conflict of interest," The Times-Picayune, New Orleans, April 7, 2006, Metro, p. 7.  James Gill can be reached at jgill@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.