Campaign Contributions Can Lead to Judicial Bias, Supreme Court Rules

Chief Justice John G. Roberts Jr., in writing for the minority, predicted that the ruling will cause a flood of lawsuits.
Chief Justice John G. Roberts Jr., in writing for the minority, predicted that the ruling will cause a flood of lawsuits. (J. Scott Applewhite - Associated Press)
By Robert Barnes
Washington Post Staff Writer
Tuesday, June 9, 2009

The Supreme Court yesterday ruled for the first time that excessive campaign contributions to a judge create an unconstitutional threat to a fair trial, a decision that could have a nationwide impact on whether judges must recuse themselves in cases involving their political benefactors.

In a case that crystallized a growing national debate over how multimillion-dollar judicial campaigns are affecting the public's view of impartial justice, the court decided that in some "extreme" cases, the risk of bias violates the constitutional guarantee of due process.

A five-member majority of the court decided that West Virginia Supreme Court Justice Brent Benjamin erred in participating in a case overturning a $50 million verdict against a company headed by a man who spent $3 million on the justice's election.

"Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," wrote Justice Anthony M. Kennedy.

The case -- similar in plot to a best-selling John Grisham novel -- has drawn a spotlight on the skyrocketing costs of judicial elections, especially state Supreme Court races. The Justice at Stake Campaign, an advocacy coalition, notes that state supreme court candidates -- 39 states, including Maryland, elect judges -- 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 oral arguments in the case in March.

The majority decision did not address the question of whether electing judges is a wise policy -- federal judges are appointed -- but groups who have criticized campaign contributions to judges welcomed the attention. "It's a big win and a signal that the U.S. Supreme Court is keeping an eye on how judicial elections are changing," said Bert Brandenburg, executive director of Justice at Stake.

As the court enters its final month of the term, the justices decided five cases, including that the current Iraqi government cannot be held responsible for the actions of Saddam Hussein's regime. Justices unanimously turned down lawsuits from Americans who had been captured and tortured during the first Gulf war.

The court also decided not to review a lawsuit challenging the military's "don't ask, don't tell" policy forbidding homosexuals from serving openly. The Obama administration and some gay rights groups had asked the court not to take the case as Obama decides how to proceed on a policy he has criticized.

The court's 5 to 4 decision on judicial recusal added the risk of bias to two other standards the court has set for when judges should recuse themselves from a case: when they have a financial interest in the case or when their previous involvement in a case makes it difficult for them to be impartial arbiters.

Kennedy sided in the case with the court's most consistent liberals -- Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- and again played the pivotal role in deciding the court's most controversial cases.

He said a "serious risk of actual bias" occurs when a party in the litigation "had a significant and disproportionate influence" in electing a judge "when the case was pending or imminent." Kennedy diminished the impact of the decision, saying that state codes of judicial conduct already provide judges with guidelines on recusal, and that "most disputes over disqualification will be resolved without resort to the Constitution."

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