The Supreme Court and Judicial Elections

Tuesday, March 3, 2009

IF EVER THERE was a case that illustrated why electing judges is a bad idea, it is the one out of West Virginia that the U.S. Supreme Court is scheduled to hear this morning.

In 2002, Hugh Caperton and his business partners won a $50 million judgment against the A.T. Massey Coal Co. The chief executive of Massey, Don L. Blankenship, was outraged, and he vowed to appeal to the West Virginia Supreme Court of Appeals. But before the appeal was filed, Mr. Blankenship led a campaign to defeat a sitting West Virginia justice who he believed was unfair to business interests and too soft on crime; one ad campaign Mr. Blankenship helped to fund accused the sitting judge of freeing a child molester. Mr. Blankenship also directly donated or helped raise money for Brent Benjamin, who was running to unseat the incumbent judge. In total, Mr. Blankenship was responsible for some $3 million that found its way into the judicial race.

Mr. Benjamin prevailed and thus wound up as one of five justices hearing Massey's $50 million appeal. He was part of the 3-2 majority that overturned the verdict.

The U.S. Supreme Court is not being asked to judge the propriety of state judicial elections, although the sometimes seedy, often controversial nature of such events serves as the backdrop. The question before the justices is whether Mr. Caperton's rights to due process under the 14th Amendment were violated by Justice Benjamin's decision not to step aside from the Massey case.

Lawyers for Massey argue that Justice Benjamin had no obligation to recuse himself because he was not shown to have a real conflict or suffer from actual bias. They also note that the Supreme Court has never before required disqualification because of campaign spending.

In fact, the Supreme Court has previously ruled that recusal is required only if a judge is faced with presiding over a case in which he or she has a financial interest or, more rarely, in certain contempt proceedings that arise from a litigant's verbal assaults on that judge. Yet lawyers for Mr. Caperton argue that due process is also violated when a judge presides over the case of a litigant who played a pivotal role in getting that judge elected, thus creating an appearance or "probability of bias."

As a matter of law, this is a more difficult case than it may appear. If the court rules that Mr. Caperton's rights were violated, it may soon find itself in a thicket of related cases involving possible conflicts of interest by judges. Maybe $3 million is obviously enough to create the appearance of a conflict, but what about $100,000? In an amicus brief, the Conference of Chief Justices suggested that the total sum of money and timing, among other factors, should be considered in determining recusals. That approach makes sense, but it would be only the beginning of the debate.

As a matter of practice, this is a lot easier. States should consider barring judges from considering cases involving litigants or lawyers who were directly or indirectly responsible for campaign contributions beyond a certain limit. More fundamental, states should consider abolishing judicial elections in favor of an appointment system that distances jurists from politics and fundraising.

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