U.S. Supreme Court Considers When a Judge Should Bow Out

Justices Consider When a Judge Should Bow Out
Case Involves Campaign Contributor With Business Before Recipient's Court
The Washington Post by Robert Barnes - 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." "Who says?" shot back Justice Antonin Scalia. "Have we ever held that?"

Joined by Chief Justice John G. Roberts Jr., Scalia sharply questioned Olson's position that an appearance of bias based on a "debt of gratitude" that judges owe to those who fund their campaigns creates a due process problem. He said that Olson was asking for a standard of probable bias adopted "out of nowhere," and that Olson's view of the appearance of bias could be extended to justices such as those on the Supreme Court, who are appointed. "I was appointed to the bench by Ronald Reagan," Scalia said, adding that he and others on the court routinely rule on issues involving the president who appointed them. "Should I have been any less grateful to Ronald Reagan than -- than the judge here was grateful to the person who spent a lot of money in his election?" Olson said there is a difference between justices who receive lifetime appointments and those who depend on campaign contributors for election and reelection. Stevens and others were equally aggressive with Massey's attorney, Andrew Frey. Stevens questioned Frey's position that an appearance of bias could never trigger a due process violation. Justice David H. Souter said the appearance of bias was one factor in a public perception that "the system that we have depended upon up to this point is not working very well."

Frey said that "judges are clothed with a presumption of impartiality," and that what the court was being asked to do would open the doors to limitless challenges from litigants. He defended Benjamin's reasons for not recusing himself: Blankenship spent his money independently, and Benjamin had no control over it; Caperton's recusal motion was not based on allegation of personal friendship between the two; and Benjamin had no personal financial interest in the case, until now the court's basis for when a judge should recuse himself. "I ask the court to ask yourselves if you were in Justice Benjamin's situation, do you really think you would be incapable of rendering an impartial decision in a case involving Massey?" Frey said. Olson countered with a different question for the justices: "Would you think it would be fair and would it be a fair tribunal if the judge in your case was selected with a $3 million subsidy by your opponent?" Beyond the specific case, though, Kennedy said he found Olson's argument about the standard the court should look to for recusal to be lacking. "Your standard is an unacceptable risk of impropriety or perception of bias, but I -- I need some more specific standards," Kennedy said. The case is Caperton v. A.T. Massey Coal Co.

CLICK HERE TO SEE RELATED STORY, "Case May Define When a Judge Must Recuse Self"