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COURT OPINIONS: US Supreme Court Nixes Judges Accepting Big Campaign Donations Due to Appearance of Bias

The U.S. Supreme Court decision in Caperton v. Massey (read the opinion here) came down yesterday, and we’ll have to see how much it impacts Texas Judges — and how often they recuse themselves from cases.

Texas Judges Run for Office: They Kiss Babies and Take Contributions

In Texas, judges run for office. (The federal judges are appointed.) Running for office is expensive. Judges have to campaign: they shake hands and kiss babies — and take money from contributors.

The Caperton decision is big news because the highest court in the land has warned judges everywhere that if they are elected, then they must not allow even the appearance of bias regarding accepted contributions. They must recuse themselves if there is even the RISK of looking like they are playing favorites (emphasis added):

Although there is no allegation of a quid pro quo agreement,the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Caperton, 556 U.S. ___ 2009 (slip opinion, p. 3).

How This May Impact Texas Judges

In Texas, at first glance this is not that big of a deal because we’ve already got a $5000 cap on campaign contributions to judicial campaigns. (There’s a $30,000 total contribution cap on members of a law firm.)

However, special interest groups don’t fall within that legal cap and Caperton may impact their activities in future campaigns. In criminal law, special interest groups are very active and it will be interesting to watch campaigns in the future to see how this decision from D.C. impacts our state in the future.

Excellent Warning by the Dissenters

In his dissent (joined by Justices Scalia, Thomas and Alito), Justice Roberts already warns that “this will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” as he criticizes the majority opinion for failing to place clear guidelines for judges on when they should recuse themselves as part of the decision.

Justice Roberts is right. This decision is going to be used to try and push judges off cases – a new kind of forum shopping, sorta. We all know it.


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