The Recusal of American Judges in the Post-Caperton Era: An Empirical Assessment of the Risk of Actual Bias in Decisions Involving Campaign Contributors

This article is an empirical investigation of the relation between campaign contributions and the ability of elected judges to remain impartial in their rulings. Its principal aim is to assess the risk to impartiality that unrecused rulings in favor of contributors may entail. The tense if not conflictual relationship between campaign support and judicial detachment became a national issue in 2009 when the Supreme Court ruled, for the first time, in Caperton v. A.T. Massey Coal Co., that a state judge’s refusal to disqualify himself after receiving extraordinary campaign support from a litigant violated the Due Process Clause of the Constitution. The present study, building upon the approach charted in Caperton, focuses in depth upon one state supreme court’s experience with contributor cases. The study follows the voting behavior of the seven Justices of the Louisiana Supreme Court (as constituted in 2006) over a 14-year period. The carefully checked database, consisting of more than 10,000 entries derived from 177 cases involving contributors, presents striking insights about the risks involved in unrecused voting. The entire database is included with the article. Far from undermining Caperton’s thesis, it demonstrates that far smaller contributions also create a risk of actual bias and that the relative size of a donation, in comparison to overall campaign funds and expenditures, is not a necessary component of the risk. The value-added of this empirical contribution to the national issue is essentially three-fold. First, it lays out a detailed factual tableau concerning the size, scope and timing of contributions. Here is a mine of vital information that may serve as a predicate for analysis and reform. Second, in line with the “risk” calculus charted in Caperton, the article presents statistical measurements and new methods of comparison to gauge the likelihood of actual bias in judicial voting behavior. The statistical calculations based on the data were verified and replicated by the Center for Empirical Research in the Law in St. Louis. Third, it carries the analysis beyond the relatively easy Caperton facts and examines the risk factor in the everyday cases before the courts. Thus, it addresses the typical and more difficult questions needing to be discussed and dealt with in the future, whether by the Supreme Court in revisiting the constitutional issue or by state legislatures, state courts and professional bodies in their reform efforts.