Judicial recusals

Last month, the U.S. Supreme Court ruled 5-4 in a West Virginia case that excessive judicial campaign contributions can threaten the constitutional right to a fair trial.

The court stopped far short of setting a hard and fast number, preferring instead to issue an ambiguous opinion along the lines of, "We know it when we see it."

The decision, though, has prompted a Nevada judicial commission to recommend that state judges recuse themselves from cases in which they received $50,000 or more, directly or indirectly, from one of the parties appearing before them.

Current state law caps individual judicial contributions at $10,000. But it is not uncommon for individuals to get around the limit by "bundling" a number of maximum contributions through relatives or corporations.

The issue of judicial elections and how judicial campaign contributions can create an unseemly appearance of impropriety has long been debated in Nevada. Voters later this year will again be asked to pass judgment on our current system.

But while the proposed $50,000 threshold is well intentioned, an arbitrary, one-size-fits all figure is not going to solve any perceived problems and could potentially create a number of unintended consequences. How long before somebody figures out he can get a judge disqualified from a case with one "third-party" TV buy?

Nevada's codes of judicial conduct already include guidelines for when judges should recuse themselves -- they seem to be working just fine in addressing matters on a case-by-case basis. In addition, attorneys have various options when it comes to moving cases out of courtrooms in which they feel uncomfortable.

The best approach remains full disclosure and then more full disclosure.

The West Virginia case was "exceptional," as Justice Anthony Kennedy noted in his majority opinion, adding that the significance of the decision would be minimal because "most disputes over disqualification will be resolved without resort to the Constitution."

In other words, there's no need for states such as Nevada to alter their existing policies on recusals solely because of the court's decision in the West Virginia case.