Justices Consider When a Judge Should Bow Out

West Virginia Supreme Court Justice Brent Benjamin cast the decisive vote in two decisions favoring a campaign donor's firm.
West Virginia Supreme Court Justice Brent Benjamin cast the decisive vote in two decisions favoring a campaign donor's firm. (Bob Bird - AP)
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By Robert Barnes
Washington Post Staff Writer
Wednesday, March 4, 2009

The Supreme Court struggled yesterday with how to set a standard for when elected judges should recuse themselves when their campaign supporters have business before their courts. But a majority indicated that a case from West Virginia provided a dramatic example of why such a standard is needed.

Justice John Paul Stevens was blunt about whether a state Supreme Court justice should have stepped aside rather than cast the deciding vote in favor of a coal company whose chief executive had spent $3 million to help the justice get elected.

"We have never confronted a case as extreme as this before," Stevens said, adding that it brought to mind former justice Potter Stewart's famous observation about obscenity: "I know it when I see it."

The case asks the court to find that an appearance of bias on behalf of a judge violates a person's constitutional right of due process and a fair trial, and it seemed to split the court along familiar ideological grounds.

Justice Anthony M. Kennedy, often the deciding vote in such situations, indicated that he sided with liberals on the court who expressed concern about the appearance of impartiality in the West Virginia case.

"Our whole system is designed to ensure confidence in our judgments," Kennedy said, adding that "it seems to me litigants have an entitlement to that under the Due Process Clause." But he said he worried about how to set such a standard.

The case is brought by Hugh Caperton, the owner of a small coal company who convinced a jury that the business tactics of A.T. Massey Coal and its chief executive, Don Blankenship, drove Caperton's company into bankruptcy. The jury awarded $50 million.

In the next statewide election, Blankenship spent $3 million to oppose a state Supreme Court justice he disliked, and to elect newcomer Brent Benjamin. When Massey's appeal of the $50 million award came to the high court, Benjamin refused to recuse himself, and twice cast the decisive vote in 3 to 2 decisions overturning the verdict.

Caperton asks the court to order a rehearing without Benjamin.

The case has drawn a spotlight on the skyrocketing costs of judicial elections, especially state Supreme Court races, which Caperton's attorney, Theodore B. Olson, told the court were "spiraling out of control." Justice at Stake, a judicial reform group, notes that state Supreme Court candidates raised almost $168 million from 2000 to 2007, nearly double the amount raised during the 1990s.

Among the most prominent critics of the campaign spending is former justice Sandra Day O'Connor, who was in the packed courtroom during the arguments.

Olson found the justice who would be his greatest adversary quickly, just seconds into his argument that his client's constitutional right to a fair trial "means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal."

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