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Court Ties Campaign Largess to Judicial Bias

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."

But the dissenting conservative justices said the decision will cause a flood of lawsuits by losing litigants and do "far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case," in the words of Chief Justice John G. Roberts Jr.

He criticized the "inherently boundless nature" of the court's decision. Seven pages of his dissent were taken up by a list of 40 questions that he said the decision did not answer.

"Today's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)," Roberts wrote. He was joined by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The case was 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 award came to the high court, Benjamin refused to recuse himself, and he twice cast the decisive vote in 3 to 2 decisions overturning the verdict.

Caperton asked the court to send the case back to the West Virginia high court for a hearing without Benjamin. The award at stake is now worth more than $80 million because of interest.

The majority did not question Benjamin's own findings of his impartiality or determine whether he fostered actual bias, saying that was not necessary.

Caperton said in an interview that he was gratified by the decision. "You can't be in this for 11 years without being an optimist," he said, adding that the decision is beneficial "not just for me but for a whole lot of people around the country who expect fairness" in the judiciary.

The case, Caperton v. A.T. Massey Coal Co., roiled West Virginia politics and the state's high court. One other justice was defeated for reelection when photos surfaced of him vacationing with Blankenship in Monaco.

In the "don't ask, don't tell" case, the court sided with the Obama administration, which had urged the justices not to hear the appeal against the policy, even though Obama is on record as opposing it. That spared the administration from having to defend in court a policy that the president has criticized.

The case, Pietrangelo v. Gates, was filed by James E. Pietrangelo II, a former Army captain who was discharged from the military for being gay. He was originally part of a group of 12 plaintiffs who were dismissed under the policy because of their sexual orientation. The U.S. Court of Appeals for the 1st Circuit rejected their suit last year.

Pietrangelo appealed to the Supreme Court on his own, while most of the other plaintiffs asked that the court not review the case, preferring to allow the administration to deal with the issue.

In ruling that the Iraqi government cannot be sued for acts of the Hussein regime, the Supreme Court rejected lawsuits by plaintiffs including CBS News correspondent Bob Simon and cameraman Roberto Alvarez. Along with a CBS producer and a soundman, they were held by the Iraqis for more than a month in early 1991 during the Persian Gulf War.

Iraq v. Simon was combined with another case from Americans who were captured, Iraq v. Beaty.

Staff writer William Branigin contributed to this report.

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