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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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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 ( He is a former commissioner on the Federal Election Commission and Justice Department official.