This is probably a year most of the Pennsylvania Supreme Court justices would rather forget, particularly Chief Justice Ronald D. Castille. Castille has taken more hits in 2010 than any chief justice since … well, Ralph Cappy, the last chief justice.
Which just goes to show you that history is often lost on those who can least afford to forget it: those in power.
Many of the hits Castille took this year were deserved. Their root, like the criticisms that Cappy faced in the wake of the pay raise fiasco in 2005, is in a failure to understand and handle public perceptions of the court.
Over the years I’ve had lawyers and judges alike talk about jurists they thought had succumbed to “black robe disease.” While black robe disease often refers to judges who are arrogant or bullies, I think it should also apply to those on the bench who become clueless about how they and their actions are seen by the rest of the public.
My diagnosis is that it’s a disease that has plagued the Pennsylvania Supreme Court a number of times over the last 20 years and one the justices need to rid themselves of if they want to get past all the recent bad press.
I thought some of the criticism Castille received over the Philadelphia Family Court debacle was premature and over-the-top. Most of those I spoke to in the legal community chalked up that mess to lax oversight and some gullibility on the part of Castille.
However, the response I’ve gotten from some of those same people about Castille listing gifts from lawyers and law firms on his financial disclosure forms has been dramatically different.
The most common response was sheer disbelief. More than one person who knows Castille and likes him said to me: “What was he thinking?”
The gifts included rounds of golf and a yearly trip to the Pennsylvania Society in New York City. The trip to NYC was paid for by the law firm Saul Ewing. The criticism since all of this became public was swift. Publicly Castille has defended the practice, saying he followed the current rules and reported the gifts, and all evidence indicates that he did.
But Castille is missing the point. The only rule regarding Pennsylvania’s justices and gifts is that if they get a gift, they need to report it. To adapt the famous line from Bill Clinton’s campaign: “It’s the perception, stupid.”
No one I’ve spoken to thinks Castille has been swayed by a round of golf or a trip. But even people who respect Castille and consider him a friend have told me they think it was stupid for him to accept the gifts.
Although all of the criticism has been aimed at Castille, he is not alone with gifts or law firms on his financial disclosure forms. Justice Seamus P. McCaffery listed on his 2009 financial disclosure form a gift valued at $380 from The Beasley Firm to attend the Atlantic City Air Show. His financial disclosure forms also show several law firms have paid income to his wife, Lise Rapaport. Rapaport has worked in McCaffery’s chambers since 2004 and has been his chief administrative judicial assistant since McCaffery joined the state Supreme Court in January 2008. The income appears related to referral fees for cases, some of them from before McCaffery got on the bench, though that could not be confirmed for all of the firms. There also doesn’t appear to be any specific prohibition against it.
When The Legal’s Leo Strupczewski asked McCaffery about it, McCaffery told him he wasn’t going to discuss his financial disclosure forms.
Why not? I can understand the other justices might be annoyed at increased scrutiny, especially if they view it as the result of another justice’s actions. But the best way to deal with the scrutiny is not to shut down, but calmly explain.
Having said that, Castille needs to understand that his actions and his words have an impact not just on his standing in the public’s eyes, but the standing of the rest of the justices and the court itself. And that’s an area where the chief justice must improve. Cappy learned some hard lessons after 2005, and I saw him adapt. Castille should learn from that.
There are other things the court can do to cure any negative impressions the public might have regarding this. The court should have an outright ban on accepting gifts from lawyers or law firms, or at least a ban above a certain threshold limit. Common sense would tell you that it’s a bad idea for justices to take gifts from lawyers or firms who might appear before them.
Absent that, the court should adopt a rule that automatically requires recusal when a justice has received a gift from a lawyer or law firm that has a case before the court.
But the real issue isn’t the gifts or money. It’s about the appearance problems. The idea that a lawyer may have paid for a round of golf for Castille is less bothersome for me than the fact that a lawyer got that level of access to Castille when most lawyers and litigants wouldn’t. More importantly, the general public is more inclined to view that situation in a negative light.
And that’s the real problem. Past and present members of the Pennsylvania Supreme Court over the last 20 years have often been way too chummy with some politicians and lawyers. Whether or not those current or former justices know it, sources have told us that a number of lawyers have used their friendships with members of the court for years as both leverage and, at times, an intimidation tactic. In light of all the bad press the court has gotten in recent years, it would behoove them to remember that whether it was Cappy’s role in the pay raise, or Castille’s role in the Philadelphia Family Court, what has caused the court the most damage to its prestige has usually been an extension of whom the justices were associating with and the circumstances under which they were, coupled with their tone-deafness to the appearance problems created by it.
Ex parte contacts are the root of all judicial corruption, both real and perceived. The court needs to wise up and create some sensible guidelines regarding contact between lawyers and judges, too.
Lastly, the court should strongly consider coming up with a set of guidelines for a justice’s recusal. Right now, it’s up to the justice.
While black robe disease isn’t an attractive ailment, it is treatable. I’ve been told that privately, Cappy later regretted the whole pay raise fiasco. Although he did a good job in trying to repair his relationship with the public, he would have been much more successful had he gone public with that regret. Castille should consider it as well. We’re not talking about decisions in cases here. We’re talking mostly about administrative issues. Justices aren’t infallible, and admitting mistakes is not a weakness. On the contrary, it’s a sign of confidence and strength.
The court can fix its current perception problems with decisive action. Assigning judges and lawyers to committees and then having them draft reports that will never be acted upon won’t cut it. The justices need to adopt some clear rules about gifts, recusal and relationships with lawyers.
If the rules don’t make the justices squirm a little, then they don’t go far enough. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer. He may be contacted at 215-557-2486, or by e-mail at firstname.lastname@example.org .