Slate's Dahlia Lithwick, writing at GavelGrab, cogently points out that today's Supreme Court oral arguments in the latest rounds of Guantanamo litigation represent the kind of historical marker where it's worth taking note because, in her words, "you're going to want to tell your great grandkids about what happened to the rule of law in America back in the day."
She's right. As Jonathan Hafetz makes clear in "Ten Things You Should Know About Habeas Corpus" there can scarcely be a more egregious violation of due process than detention without review. But while far less fundamental than the survival of habeas corpus in the form of real hearings, before real courts, with real procedural protections, America's state courts are facing a due process crisis of their own.
In short, the influence of big money in our nation's state courts is nearing the point where, well, "you're going to want to tell your great grandkids about what happened to the rule of law in America back in the day."
While the outside threats to judicial independence are serious and metastasizing, the unfortunate -- and for many, uncomfortable -- fact is that the de-legitimizing of America's courts is at least partly an inside job.
When judges fail to police themselves, and when the judiciary fails to adequately police the judges who fail to police themselves, we all lose. For the most recent case in point, we turn to a blizzard of news amidst last week's blizzards in Wisconsin.
Wisconsin serves as the latest reminder that bias and/or the appearance of bias is not limited to duck-hunting. Sometimes, as in the case of now-Wisconsin Supreme Court Justice, Annette Ziegler, it involves ruling on cases involving a bank that your husband helps to run, or ruling on cases involving a company in which you own $50,0000 in stock, or, one week ago, sitting on a case involving an organization that spent $2 million -- more than the total expenditures of your entire campaign -- to help get you elected. The last of these instances led to a flurry of editorials in Wisconsin urging her to step down from the case, and even from the bench.
Justice Ziegler is merely one acute illustration of an increasingly chronic problem. Indeed, for the last few years, now-Illinois Supreme Court Justice Lloyd Karmeier was Exhibit A for the failure of the rules of self-policed judicial disqualification to keep pace with a rising tide of money in judicial elections. Alas, it appears that his judicial colleague to the north, Justice Ziegler, is on pace to give him a run for the, um, money.
In almost every state in the country, including Wisconsin, the general standard on recusal closely mirrors that of the American Bar Association -- namely that a "judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."
For political candidates, money is oxygen. And in a $5 million race, $2 million buys a lot of breathing.
As detailed in the press stories, Wisconsin Manufacturers & Commerce spent more than $2 million last spring supporting Justice Ziegler. Now, it has filed a brief and helped to finance the appeal of a case that could trigger an estimated $350 million in tax refunds to businesses. Justice Ziegler has declined to recuse herself. So let's take those words for a test drive: might it be reasonable to question Justice Ziegler's impartiality under the circumstances?
Well, is habeas corpus a fundamental right? Not only are the answers to those questions the same, they are grounded in the same fundamental right -- due process.
The fact of the matter is that, whatever one's view of state judicial elections, they are not going away any time soon. What to do? Public financing, which makes eminent sense in the legislative and executive contexts, makes even more sense in the non-constituent-based judicial branch. Recognizing this, in recent years North Carolina and New Mexico have adopted judicial public financing as a way to get ahead of the special-interest tidal wave.
For lawyers, state courts may lack the sex appeal of their federal counterparts. But sexy or not, they are also where the vast majority of American justice occurs. In elective state judiciaries, short of public financing, strengthening the enforcement of recusal rules is critically important.
For the wonky few, the Brennan Center's initial recommendations in that regard are available here. But for the rest of us, standing by while scenarios like Justice Ziegler's become the rule rather than the exception is not a serious option. Not unless you actually want "to tell your great grandkids about what happened to the rule of law in America back in the day."
James Sample is counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.