Here & Now

Supreme Court Rejects Proposal To Toughen Recusal Standards

Frederica Freyberg:

Now to tonight’s Capitol Insight and State Supreme Court news. Some tense moments at the high court yesterday as justices rejected on a 5-2 vote a proposal that would have required them to recuse themselves because of a certain level of campaign contributions. We look into this issue now with Shawn Johnson of Wisconsin Public Radio. Thanks for being here.

Shawn Johnson:

Thanks for having me.

Frederica Freyberg:

This was a group of retired judges that brought this recusal proposal before the court, right?

Shawn Johnson:

Right. Essentially what it would have done is change from the system we have now where it’s up to judges and justices to decide when or if they recuse themselves from cases and that by the way is a recusal standard that says campaign contributions are not a factor that they have to weigh when it comes to whether or not to step down from a case. This would have set a dollar standard and it said in the case of Supreme Court candidates somebody gives the candidate $10,000 or more and is a lawyer or a party to a case before the court, that a Supreme Court justice would have to recuse themselves from that case.

Frederica Freyberg:

So we described tense moments on the court as part of all of this. What was that about?

Shawn Johnson:

That's pretty accurate. You had among those who voted against the proposal, the proposal recusal rules was Justice Rebecca Grassl Bradley who made it very clear she was against them. She expressed being personally affronted by the rules. Here’s what she said.

Rebecca Bradley:

Every judge and justice in the state of Wisconsin should be highly offended by this petition because it attacks their integrity and their character. And I today defend every justice and judge in the state in rejecting this petition.

Frederica Freyberg:

Those opposed to such recusal say it is a violation of the U.S. Constitution because campaign donations are free speech. The two justices in favor said that’s not so and we have some more sound. This time from Justice Shirley Abrahamson.

Shirley Abrahamson:

I find nothing in the Wisconsin Constitution or the United States Constitution that says this court cannot make reasonable rules for recusal.

Frederica Freyberg:

Meanwhile the U.S. Supreme Court said the states could set recusal rules because of donations from parties before the court.

Shawn Johnson:

And that’s what you heard alluded to a couple of times during this discussion this week from Justice Abrahamson is that you have cases that have been before the court where the court has said it’s up to states if they want to set stricter recusal standards, they can.

Frederica Freyberg:

Meanwhile, kind of the mega money that has poured into Wisconsin Supreme Court races is pretty staggering according to the Brennan Center for Justice. The last seven elections cost more than $1 million. Four races cost more than $3 million and the 2011 race that saw Justice Prosser re-elected cost more than $5 million. But money coming from these outside interest groups also doesn’t factor into any judicial recusals in Wisconsin.

Shawn Johnson:

No. And the judges who asked for these recusal standards did allude to that outside money becoming a bigger factor in Wisconsin. They said especially in light of a recent State Supreme Court case and a new law in Wisconsin that basically allowed for near unfettered coordination between candidates for office and interest groups that run issue ads. They said this is a different playing field than it was in 2010 which is the last time they talked about recusal standards. That was alluded to briefly in this discussion before the court this week and essentially conservative justices said that’s not the issue in this situation.

Frederica Freyberg:

Alluded to and rejected. So is this the end of it then for recusal rule changes?

Shawn Johnson:

I think you can say it’s the end of it with these justices. We went into this thinking the five conservatives on the court would probably vote against these recusal standards. They did it. It was a 5-2 vote with conservative/liberal blocks sticking together on this one. We do have a few elections coming up, though. You have Justice Michael Gableman is up for re-election in 2018. Justice Shirley Abrahamson is up for re-election in 2019. Justice Daniel Kelly up for his first election in 2020. You’re going to see this issue of money in the court coming up again and again. Whether elections change the outcome of the court could determine whether or not they actually revisit recusal standards.

Frederica Freyberg:

All right. We leave it there Shawn. Thanks very much.

Shawn Johnson:

You’re welcome.