Election Law, Federal Judges, Judicial Nominations, Money, Politics

The High Price of the Federal Bench

A minor scandal is brewing in Las Vegas. In a city known for its impeccable ethics and strictly above-board dealings, the legal community is astir over suggestions that a nominee to the federal bench earned her nomination by engineering a windfall for her political sponsor, Senator Harry Reid, with conveniently-timed donations from her law partners.

At what point does sucking up to politicians cross into the appearance of impropriety for prospective federal judges, and how much should the rest of us care?

The immediate controversy surrounds Jennie Dorsey, currently awaiting confirmation to the District of Nevada bench:

Roughly six months before her nomination by President Obama and shortly after she spoke with Reid’s campaign committee about the possibility of her nomination, Jennie Dorsey donated $2,500 to Reid’s campaign. A month later, the campaign returned the money to Dorsey.

That seems responsible. However, like a bad infomercial, “but wait, there’s more…”

The records show a partner in Dorsey’s firm, Will Kemp, made a $100,000 donation reported May 1, 2012, to Senate Majority PAC, established by former strategists to Sen. Harry Reid, D-Nev., to help Democratic Senate candidates. Another partner, J. Randall Jones, donated $50,000 to the PAC, reported on May 14, 2012.

The donations came as Reid was considering Dorsey for a judgeship. The state’s senior senator sent his recommendation to the White House in June, and President Barack Obama nominated Dorsey in September.

And that isn’t counting the additional $31,000 given to Senator Reid directly or to the Democratic Party of Nevada. There’s nothing really illegal about two lawyers giving that much to a SuperPAC. The amounts are big, bigger than the two had ever given before, but then again, they had just won a $182 million judgment against Teva Pharmaceutical, so they had a lot more to give last cycle.

But broken down: Reid’s allies get paid in May, he makes a recommendation in June, Dorsey is nominated in September. Curious.

That certainly looks like a payoff. And the involvement of the terminally slimy Harry Reid only exacerbates the queasiness one could feel about this nomination. Maybe there was no connection between the contributions and Dorsey’s nomination, but, so far, no one on the Senate Judiciary Committee has seen fit to even explore the issue.

And that might be because prudence mandates that neither side do anything that could disrupt the gravy train that’s been flowing from prospective judges for years. An investigation conducted by the Center for Investigative Reporting in 2006 revealed:

At least two dozen federal judges appointed by President Bush since 2001 made political contributions to key Republicans or to the president himself while under consideration for their judgeships, government records show. A four-month investigation of Bush-appointed judges by the Center for Investigative Reporting reveals that six appellate court judges and 18 district court judges contributed a total of more than $44,000 to politicians who were influential in their appointments. Some gave money directly to Bush after he officially nominated them. Other judges contributed to Republican campaign committees while they were under consideration for a judgeship.

On the one hand, it shouldn’t trouble us that judges are political beings. In many states, judges are explicitly partisan, elected officials. We can’t pretend that the alternative of letting partisan officials nominate judges frees the process from partisanship. The problem, as always, is in the amounts.

The amounts involved in Dorsey’s nomination exceed the amounts at issue for the Bush-era judges, but those nominations came before Citizens United blew the doors off campaign giving. Perhaps it’s fitting that the first public outcry over the possible impact of Citizens United on the federal bench comes from the same city where Sheldon Adelson resides. Aspiring judges have always been selected from among a number of lawyers active within their party, but (thanks to campaign finance laws) there were always a bunch of candidates to choose from who all gave roughly the same amount. In the new normal of campaign finance — now that there’s no limit at all — the possibility that the plum assignment is just going to the highest bidder is a tangible fear.

The country has accepted prospective judges throwing money at politicians for a long time, but at the end of the day, why is an Article III judgeship appreciably different than a Senate seat? When Rod Blagojevich called a Senate seat a “f**king valuable thing, you just don’t give it away for nothing,” everyone freaked out that he was giving away an appointed position to the highest bidder and he went to prison.

Jennie Dorsey may or may not have had anything to do with the massive amounts her partners contributed last cycle, but the mere possibility that her nomination could be tied to those donations — or more importantly, the size of those donations — reveals a festering problem in the system.

At what point does the money involved in the process undermine public confidence that judges are chosen on merit as opposed to price tag?

How Much Is That Judgeship In The Window? [Las Vegas Law Blog]
Questions Continue About Contributions by Judge Nominee’s Law Partners [Las Vegas Review-Journal]
More Money Than God [Law Vegas Law Blog]
Money Trails Lead to Bush Judges [Salon]

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