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Judging the Judges

A Supreme Court decision damages the tradition of democratically-elected state and local judges.

12:00 AM, Jun 11, 2009 • By HANS A. VON SPAKOVSKY
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In our political system, the best check on lawmakers is that they must run for office. In many states and localities the same thing is true for judges. Unfortunately, a recent Supreme Court decision may effectively neuter this traditional protection.

Here's the background. The high court ruled recently (in Caperton v. Massey Coal Company) that if an independent person or group spends money trying to get a judge elected -- even if the judge had no involvement in the political expenditures -- the judge may have to recuse himself from any cases that could affect the group.

The Court's holding that the "perception" of possible bias violates the due process clause won't do anything to correct real bias in the courts. In fact, there wasn't even an argument of "actual" bias by the judge in this case.

But by creating a new, constitutional claim (from whole cloth), the Caperton decision ensures a flood of frivolous claims will be filed anywhere judges are elected. This will add more delays and costs to a litigation system that already suffers from both ills.

Here's how this particular case came to be: Caperton owns a mining company. He won a jury verdict of $50 million against Massey Coal Company, whose CEO is Don Blankenship. During the appeal process, Blankenship attempted to democratically unseat West Virginia Supreme Court Justice Warren McGraw. As Justice Scalia noted in oral arguments, Blankenship thought McGraw was "an activist judge that was distorting the tort law of the State, all in favor of the plaintiffs' bar."

That's entirely possible. West Virginia is rated as the worst "judicial hellhole" in the nation by the American Tort Reform Foundation because of its "anti-business rulings, massive lawsuits and cozy relationships between the personal injury bar, the state attorney general and some in the judiciary." According to ATRF, the West Virginia Supreme Court "has a history of plaintiff-biased decisions, paying damages to those who are not injured rejecting long-established legal principles, and welcoming plaintiffs' lawyers from other states to take advantage of its generous rulings."

As happens in elections, another lawyer (Brent Benjamin), decided to challenge Justice McGraw. Benjamin had no relationship with Massey Coal and had never even met Blankenship, but the mine owner did contribute $1,000 to Benjamin's campaign. Meanwhile, Blankenship spent $3 million in an independent campaign to unseat Justice McGraw. Blankenship's campaign was not coordinated with Benjamin's. As also happens in elections, an organization called Consumers for Justice (which notably received large contributions from the plaintiffs' bar), spent at least $2 million in support of McGraw.

Benjamin won the election and replaced McGraw.

When Massey Coal's appeal finally reached the West Virginia Supreme Court, the Justices overturned the $50 million verdict in a 3 to 2 decision. Justice Benjamin didn't recuse himself and voted with the majority to reverse the trial court.

That was unusual. Not because Benjamin declined to recuse, but because he voted in Massey's favor. Benjamin had voted against Massey Coal fifteen times, in cases that went against Massey's financial interest to the tune of $317 million. Therefore no serious argument can be made that Benjamin was a "bought vote" for Massey Coal, and indeed counsel for Massey didn't even try to claim any actual bias.

Unfortunately, the Supreme Court majority opinion by Justice Kennedy keeps mistakenly referring to the "contributions" made to Benjamin's campaign. Kennedy either overlooks or deliberately ignores the fact that Blankenship was running an independent campaign with his funds against a judge he did not like, and only directly contributed a nominal amount to the challenger's campaign.

Obviously, if a judge has a financial interest that is affected by litigation, he must recuse himself. Thus, if Benjamin had owned shares in either mining company, he would have had to sit out this case. But he had no such financial conflict, and the only contribution he received from anyone involved in the case was for $1,000, a very small part of the $850,000 he raised for his campaign.

The majority is convinced that Blankenship's independent expenditures had a "significant and disproportionate influence on the electoral outcome" even allowing him to "choose" the judge on his case. That essentially ignores the millions of dollars spent on the other side to defeat Benjamin. Besides, Benjamin won by a 7-point margin. Almost every newspaper in West Virginia endorsed him. The incumbent refused interviews, ignored debates, and gave a well-publicized speech that the West Virginia media characterized as "deeply disturbing" or worse. As happens in elections, the stronger candidate prevailed.

No one has claimed the West Virginia Supreme Court decision was legally or factually incorrect. Nor is there any claim of actual bias, financial impropriety, or anything resembling a quid pro quo. The only argument advanced (and swallowed whole by the majority) was that because Massey Coal's CEO ran a totally independent campaign to get rid of an incumbent justice, there was an appearance of possible bias, violating Caperton's right to a fair trial under the Due Process Clause of the Constitution.

This "standard" is so vague it will open up the courts to a flood of frivolous bias claims. As Chief Justice Roberts says in his dissent, it provides "no guidance to judges and litigants about when recusal will be constitutionally required." In fact, Justice Roberts provides a list of 40 complex questions that courts will now have to routinely answer to determine if recusal is required. State and federal judges will be required to act simultaneously "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?)."

This decision threatens Americans' First Amendment rights to engage in independent political speech. Just spending money on advertisements criticizing (or praising) a judge could allow a litigant to get that judge booted off a case. Indeed, the majority's theory of Due Process injury is so broad that it raises serious questions about whether Sonia Sotomayor, as a justice on the Supreme Court, would have to recuse herself from any case involving the same liberal interest groups that are spending money on independent ads or other political and educational activity to support her nomination.

This case endangers state judicial elections, since under the majority's theory of bias, it will be next to impossible for a judge to be elected without receiving campaign support (in the form of donations or even independent support) that could force the judge to constantly recuse himself from cases. This is, in fact, the goal of liberal campaign "reform" groups backed by George Soros. They do not like the fact that citizens can vote liberal judges out of office when they do not adhere to the law and prefer undemocratic selection committees dominated by left-leaning bar association and trial-bar apparatchiks.

States already have the power to address ethical conflicts through legislatures, judicial authorities and bar associations. In cases of extreme misconduct, impeachment or indictment are always possibilities. Caperton, seen in that light, is not about ensuring fair trials and due process, but about altering the way that many states choose their judges. It "constitutionalizes" an issue which is not properly a "due process" concern, and will end up forcing judges to make up policy as they go along.

Chief Justice Roberts warns that the court will come to regret this decision because it will have far-ranging consequences that the majority does not foresee. As Justice Scalia concludes, this is an expansion of "a constitutional mandate in a manner ungoverned by any discernable rule."

Hans A. von Spakovsky is a Legal Scholar at the Heritage Foundation (heritage.org). He is a former commissioner on the Federal Election Commission and Justice Department official.