From Michael J. Gerhardt, who teaches constitutional law and legal ethics at UNC Chapel Hill, in response to “A Newby recusal on redistricting would set bad precedent” (Dec. 9 For the Record):
There is no issue more important to our system of government than judicial integrity, and this issue is now being put to a critical test. We should all look to the N.C. Supreme Court, where newly reelected Justice Paul Newby is being asked to recuse himself from participating in the case challenging North Carolina’s redistricting plan. Recusal is a sensitive issue for judges, but the particular context here clearly supports Justice Newby’s recusal.
I appreciate that a fellow law professor, Scott Gaylord, argued in last Sunday’s Observer against Justice Newby’s recusing himself from participating in this high-profile case. In his editorial, Gaylord discussed one of the three principles governing a justice’s recusal – the U.S. Supreme Court’s landmark ruling in Caperton v. A.T. Massey Coal. Regrettably, my colleague got that ruling wrong and left out two other principles, which must be strictly followed to prevent judges from having their impartiality compromised in judicial elections. Instead, he relied on Caperton’s dissent, which is not legal authority.
First, the majority in Caperton ruled that the Fourteenth Amendment’s Due Process Clause required a state Supreme Court justice to recuse himself “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case.” The Court explained that recusal turned on several factors, including the contribution’s size in comparison to the total amount spent in a judicial campaign, the contribution’s apparent effects, and the temporal relationship between campaign contributions, the election and the pending case.
Applying these factors in the present circumstances, we should note several facts: Independent expenditures made on Justice Newby’s behalf were greater than 390 percent of his campaign’s total expenditures and exceeded the latter by over $1.3 million; Justice Newby won by a narrower margin than the justice ordered recused in Caperton, and late seven-figure independent contributions apparently tipped it in his favor and were made by major actors in the pending case. A straightforward application of Caperton requires Justice Newby’s recusal.
Second, North Carolina’s Supreme Court has declared recusal is required not just for actual bias but also because, “The purity and integrity of the judicial process ought to be protected against any taint of suspicion to the end that the public and the litigants may have the highest confidence in the integrity and fairness of the Courts.” Republican and other conservative organizations made substantial contributions to Justice Newby’s campaign precisely because they wanted him to participate in a case like the redistricting case. This message was delivered at rallies where he was present.
Third, North Carolina’s Code of Judicial Conduct requires judges to recuse themselves when their “impartiality may reasonably be questioned.” In the current circumstances, the same group that lobbied and paid for the redistricting map was a major contributor to Justice Newby’s reelection. In such circumstances, confidence in impartiality comes into question.
I know Justice Newby. He is a terrific person and an outstanding graduate of our law school. I do not question his integrity. But, his fine personal qualities do not diminish my view of the right thing for him to do in this case. Controlling precedents, our judicial code of conduct, and the need for absolute confidence in his impartiality mark a clear path to recusal.