Supreme Court Weighs In on the Corrosive Impact of Money in Judicial Elections

Wednesday, June 10, 2009

THE SUPREME Court ruled this week that a victorious judicial candidate who receives extraordinary assistance from a donor should step aside from deciding cases that are "pending or imminent" in which the donor has a substantial stake. The decision raised more questions than it answered, but it should serve as a call for states to tighten judicial ethics standards and rethink judicial elections altogether.

A 5-4 majority of the justices determined that West Virginia Justice Brent Benjamin should have declined to participate in Caperton v. A.T. Massey Coal Company Inc. The chief executive officer of Massey poured $3 million into the 2004 race between Mr. Benjamin, then a lawyer in private practice, and incumbent Justice Warren McGraw for a seat on the West Virginia Supreme Court of Appeals. Much of the money did not go directly into Mr. Benjamin's coffers but was used by an advocacy group to fund attack ads against Justice McGraw. The Massey CEO's contributions accounted for roughly two-thirds of all the money raised by the group.

After Justice Benjamin's election, Massey appealed a $50 million judgment against it to the West Virginia high court. Massey's opponents in the legal case asked Justice Benjamin to recuse himself, but he declined and twice voted to overturn the judgment. His participation in the case, the Supreme Court ruled, triggered a "probability of bias" and "a serious risk of actual bias" that could have undermined the constitutional right of Massey's opponents to a fair and impartial hearing. In the future, the majority concluded, judges must consider a "contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election" when deciding whether to step aside from a case.

Justice Benjamin should have recused himself. But in fashioning its vague solution, the justices in the majority may have opened the door to a flood of lawsuits in which litigants who don't like the judges assigned to their cases use campaign contributions as a pretext to kick the judges off a case. Chief Justice John G. Roberts Jr., writing for the four dissenters, worried that the proliferation of such challenges could erode the credibility of the judiciary.

It's an understandable concern, but states have ample power to protect the credibility of their judiciaries. They should consider new rules to prohibit judges from deciding cases involving litigants or lawyers who were directly or indirectly responsible for those judges' campaign contributions beyond a certain limit. Even more to the point, states should consider abandoning judicial elections for a merit selection system that better insulates judges from the corrosive influences of money and politics.

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