FedSoc Blog

The Federalist Society hosted its professional responsibility panel at its National Lawyers Convention this afternoon. The topic of the panel was "The Bloody Crossroads: Republican Party of Minnesota v. White Runs Into Caperton v. Massey." The panelists were Mr. James Bopp, Jr., Bopp, Coleson, and Bostrom; Hon. Thomas R. Phillips, former Chief Justice, Supreme Court of Texas; Hon. Patience Drake Roggensack, Wisconsin Supreme Court; and Hon. Clifford W. Taylor, former Chief Justice, Michigan Supreme Court. Judge Thomas M. Hardiman of the U.S. Court of Appeals for the Third Circuit moderated.

James Bopp began the program by arguing that Caperton and Republican Party are not in fact in conflict because Justice Kennedy limited the decision to its facts. There are therefore no "bloody crossroads."

Justice Roggensack noted that Republican Party had to do with a candidate's speech, while Caperton had to do with third-party speech. Caperton causes no problems for judicial candidates, but Republican Party does create issues because motions to recuse have increased, and this hurts the legitimacy of the court.

Chief Justice Taylor predicted, unlike Mr. Bopp, that Republican Party and Caperton would be read together to create some problems. They are likely to intersect. According to Chief Justice Taylor, the state supreme courts have taken more control of policy issues, so it makes sense that First Amendment rights attach to those who seek these offices because they are forced to tell voters about their judicial philosophy.

Chief Justice Taylor continued by saying that it is likely in the future that not making a recusal motion in a closely-decided case will be considered malpractice. The result, he said, will be devastating to the public's confidence in the way the courts function.

Chief Justice Phillips argued that Caperton was a "one-shot" case with a unique situation. Caperton will be limited to its facts, he said, as have all the Supreme Court cases on this subject.

Chief Justice Phillips talked at some length about free speech, saying that it is as much the benefit of the voters who can ask anything they want as it is a benefit of a candidate. Even though there is a free speech right in judicial elections, there are very important governmental interests in the judiciary that make it impossible to have a full right.

In the question and answer session, Justice Taylor and Mr. Bopp noted that opponents of judicial elections have been using the Caperton issue to support their view, and yet a majority of Americans still view judicial elections as a necessary check on judicial activism.

Justice Taylor talked about how he doesn't think that political contributions are inherently corrupting, though Buckley v. Valeo has made most people view them as a favor to be repaid.

Mr. Bopp said that he thought it was wrong for judges not to be allowed to raise money to defend what they are doing in order not to be voted out of office.