What sets American jurisprudence apart is the presumption of impartiality on the bench. And that means a judge should never sit in judgment in a case worth $50 million when the defendant spent millions to help that judge get elected, the U.S. Supreme Court said Monday.
The commonsense ruling in Caperton vs. Massey — that elected judges must recuse themselves when one of the parties in the case spent huge sums to get that judge on the bench — underscores what has long been true when it comes to electoral politics and judges. They don't mix, particularly as the contributions to judicial races have greatly increased. According to the Brennan Center for Justice, from 2000 to 2007 $168 million was spent in contested elections for state high court seats. That's double the amount spent a decade earlier.
Florida recognized the inherent conflict of interest decades ago when a scandal on the Florida Supreme Court prompted it to move to a system where the governor appoints all but trial judges using a list of recommendations from the state's Judicial Nominating Commissions. This system largely shields the state from a Caperton-like situation. That is not to say Florida is perfect. Trial judges still solicit campaign contributions, often from the lawyers who will argue before them. And as governor, Jeb Bush pushed to give governors the right to appoint every member of the state's 26 JNCs, injecting partisanship into the process. While still better than a system of election for all judges, the appointment process needs to be changed so that the governor cannot stack the deck on the nominating commissions.
In Caperton, Don Blankenship, the CEO of Massey Energy, one of America's largest coal companies, spent more than $3 million to help Brent Benjamin win election to the West Virginia Supreme Court — an amount three times what was spent by Benjamin's campaign committee. Benjamin then refused to disqualify himself in a case involving a $50 million verdict against Massey. Benjamin, who is now chief justice, twice cast the deciding vote to set aside the adverse jury verdict.
While the conflict was obvious, only five members of the U.S. Supreme Court found it untenable. The 5-4 ruling divided along predictable ideological lines. Justice Anthony Kennedy joined the more liberal justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — to find that Benjamin's refusal to disqualify himself was a violation of due process.
"Just as no man is allowed to be a judge in his own cause," Kennedy wrote for the majority, "similar fears of bias can arise when … a man chooses the judge in his own cause."
The dissent written by Chief Justice John Roberts and joined by the court's conservative wing — Antonin Scalia, Clarence Thomas and Samuel Alito — worried that the ruling would encourage a wave of baseless claims of judicial bias that would undermine public confidence in the impartiality of the judicial system.
Roberts raises some important questions. But it also is likely that the ruling will encourage more elected state court judges to recuse themselves when legitimate questions are raised about their ties to donors or special interests. Rather than excite public concerns about bias in the judiciary, the ruling may assuage fears that big campaign money has a role in an elected judge's decisionmaking.
The Caperton ruling has recognized a due process right in being before a neutral arbitrator and how that objectivity can be compromised in judicial elections. It was the right decision.