SC rules that elected Judges can't rule on major backers

[jimmy olsen]

Good, I think it's very important that this situation be avoided.

http://www.nytimes.com/2009/06/09/us/politics/09scotus.html?hp

Justices Tell Elected Judges Not to Rule on Major Backers

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In a 5-to-4 decision released on Monday, the high court found that the circumstances surrounding Justice Brent D. Benjamin of the West Virginia Supreme Court and alawsuit involving the Massey Energy Company, his major campaign contributor, were so "extreme" that there was no question that Justice Benjamin should have disqualified himself.

Because 39 states have legal systems in which judges are elected, the outcome of the West Virginia case has been eagerly awaited. But whether Monday's decision will bring clarity or chaos to the state courts, or something in between, was a point of bitter disagreement between the high court's majority and dissenters.

"The facts now before us are extreme by any measure," Justice Anthony M. Kennedy wrote for the majority. "The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case."

Justice Benjamin, who is now the chief justice on the West Virginia high court, twice joined 3-to-2 majorities to throw out a $50 million verdict against Massey Energy, one of the country's biggest coal companies, which was involved in a long-running dispute with another coal company, Harman Mining, and its president, Hugh Caperton.

Since Massey's chief executive, Don L. Blankenship, had spent $3 million in the 2004 campaign attacking a West Virginia justice who was seeking re-election, and since Brent Benjamin prevailed against the incumbent, eyebrows went up in West Virginia and in legal circles across the country as Justice Benjamin refused to remove himself from the case.

"Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," Justice Kennedy wrote.

Justice Kennedy also sais that the case that has reflected unflatteringly on the West Virginia court system, for example, when another West Virginia justice was observed vacationing with Mr. Blankenship on the French Riviera while the case was pending.

Dissenters on the West Virginia high court have called the case "a cancer in the affairs of this court," and one whose outcome is "morally and legally wrong" and "fundamentally unfair."

Justice Kennedy noted that no "quid pro quo" connection has been established between Mr. Blankenship's campaign contributions, which dwarfed those of other donors in the judicial elections, and Justice Benjamin's stance in the lawsuit. But there was "a serious, objective risk of actual bias" that required Justice Benjamin to recuse himself, or the plaintiff's due process rights under the Fourteenth Amendment would be in danger, Justice Kennedy wrote.

Joining Justice Kennedy in Caperton v. A.T. Massey Coal Company, No. 08-22, were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Monday's decision, a victory for Mr. Caperton and Harman, sends the case back to West Virginia for further proceedings.

Chief Justice John G. Roberts Jr. wrote a dissent in which he asserted that, contrary to the majority's insistence, the outcome in Caperton v. Massey "will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be."

"The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case," the chief justice wrote, listing dozens of questions that he said the majority had raised without really answering and that the lower courts will have to wrestle with. Joining the chief justice in dissent were Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The Campaign Legal Center, which describes itself as a nonpartisan, nonprofit organization working in the areas of campaign finance and elections, political communication and government ethics, called Monday's decision "a welcome result for anyone interested in ensuring the fairness and integrity of the judicial decision-making process."

"It is surprising that four justices could muster a dissent given the particularly appalling set of circumstances that gave rise to this case," the center said in a statement.

[DGuller]

How could this case not be a 9-0 decision?  Do the four conservative justices always have to take up the position contrary to common sense and common decency?

[crazy canuck]

If he removed himself from the case how was he going to fulfill his election promise?

[Barrister]

How could this case not be a 9-0 decision?  Do the four conservative justices always have to take up the position contrary to common sense and common decency?

The slippery slope argument is a very real one here.

If you're going to have elected judges they are inevitably going to get campaign donors.  A judge is inevitably going to have dealings with people and corporations that have been donors.  This could encourage a very scorched-earth strategy of going after the judge in more and more cases.

Myself I'm not so sure what side I would come down on in this case, but to summarize the dissent as lacking "common sense and common decency" is nothing but political rhetoric.

[Berkut]

Myself I'm not so sure what side I would come down on in this case, but to summarize the dissent as lacking "common sense and common decency" is nothing but political rhetoric.

Since when has DG engaged in political rhetoric?

Please, give the guy some credit. He is, if nothing else, non-partisan.

[DGuller]

The slippery slope argument is a very real one here.

If you're going to have elected judges they are inevitably going to get campaign donors.  A judge is inevitably going to have dealings with people and corporations that have been donors.  This could encourage a very scorched-earth strategy of going after the judge in more and more cases.

Myself I'm not so sure what side I would come down on in this case, but to summarize the dissent as lacking "common sense and common decency" is nothing but political rhetoric.

There is nothing political in my rhetoric, and this is not a political case.  Refusing to rule against what is essentially outright bribery seems very apalling to me.  It always seems to be the same four justices that make you go "WTF?" when you do see decisions on cases that seem to be very clear-cut to laymen.  I for one don't subscribe to the view that Supreme Court decisions should appear defensible only to lawyers.

[Eddie Teach]

There is nothing political in my rhetoric, and this is not a political case.  Refusing to rule against what is essentially outright bribery seems very apalling to me.  It always seems to be the same four justices that make you go "WTF?" when you do see decisions on cases that seem to be very clear-cut to laymen.  I for one don't subscribe to the view that Supreme Court decisions should appear defensible only to lawyers.

I don't know about you, but city governments seizing land to make hotels and golf courses makes me go WTF?

[crazy canuck]

The article in the link is a bit different then the one you pasted.  On the facts it appears not to be as obvious a decision as DG would have it.  There was no evidence of actual bias nor was there any evidence that the spending was the reason he won the election.  The article points out that other reasons included his opponent putting in a bad election performance and all the major newspapers endorsing him.

When you have a system of electing judges you necessarily accept at least the appearnance of bias in any decision.  This case simply says the appearance went too far.  I dont think it is outrageous to decide otherwise nor do I think it outrageous to suggest, as Scalia did, that the constitution is not the proper tool for deciding this issue.  It is really a matter of regulation by local judicial regulators who allowed for the election of judges in the first place.

[Admiral Yi]

Is recusal generally a purely voluntary thing?

[Barrister]

Is recusal generally a purely voluntary thing?

Yes.

But it is a judicial decision, like any other, that is subject to appeal.

[Barrister]

There is nothing political in my rhetoric, and this is not a political case.  Refusing to rule against what is essentially outright bribery seems very apalling to me.  It always seems to be the same four justices that make you go "WTF?" when you do see decisions on cases that seem to be very clear-cut to laymen.  I for one don't subscribe to the view that Supreme Court decisions should appear defensible only to lawyers.

It's clearly political rhetoric since you pointedly go after the 4 more conservative justices, and you point out that it is "always the same 4".

And you say "what is essentially outright bribery" - you're mischaracterizing the issue.  There was absolutely no evidence of bribery.  What you have here is not bias, but the "reasonable apprehension of bias".

DG, I think I tend to agree with you and I think I might prefer the majority but no need to demonize the opposite side.

[Hansmeister]

The slippery slope argument is a very real one here.

If you're going to have elected judges they are inevitably going to get campaign donors.  A judge is inevitably going to have dealings with people and corporations that have been donors.  This could encourage a very scorched-earth strategy of going after the judge in more and more cases.

Myself I'm not so sure what side I would come down on in this case, but to summarize the dissent as lacking "common sense and common decency" is nothing but political rhetoric.

There is nothing political in my rhetoric, and this is not a political case.  Refusing to rule against what is essentially outright bribery seems very apalling to me.  It always seems to be the same four justices that make you go "WTF?" when you do see decisions on cases that seem to be very clear-cut to laymen.  I for one don't subscribe to the view that Supreme Court decisions should appear defensible only to lawyers.

The USSC is not supposed to rule on what they think would make good law, but on what the law actually says.  Lawmakers are supposed to make the laws.  So while it is sensible that judges should be forced to recuse themselves when there is an appearance of conflict of interest, legislatures need to make these rules, not judges.

I presume the four conservative judges ruled against this because of the lack of existing laws on the matter.  liberal judges decide to take the law in their own hands and turn to vigilante justice.

[ulmont]

I presume the four conservative judges ruled against this because of the lack of existing laws on the matter.  liberal judges decide to take the law in their own hands and turn to vigilante justice.

No.  The law was clear that under certain circumstances judges must recuse themselves or due process is violated.

The question was whether this case was far enough, there being no direct personal financial gain to the judge, and whether ruling that this case was far enough would open a parade of horribles.

[Barrister]

The USSC is not supposed to rule on what they think would make good law, but on what the law actually says.  Lawmakers are supposed to make the laws.  So while it is sensible that judges should be forced to recuse themselves when there is an appearance of conflict of interest, legislatures need to make these rules, not judges.

I presume the four conservative judges ruled against this because of the lack of existing laws on the matter.  liberal judges decide to take the law in their own hands and turn to vigilante justice.

Now I'm opening myself up for trying to debate a decision without having read it...

but conduct of judges, issues of bias and recusal, are questions of common law, not statute.  In this country the SCC can and does make decisions on what the common law is.

[crazy canuck]

Is recusal generally a purely voluntary thing?

Depends on what you mean by voluntary.  The law requires judges to recuse themselves if they cannot be impartial because of some bias.  In that sense it is not voluntary.  But an odd quirk is that the judge in question must decide, in the first instance, whether such a bias exists.  That decision can be appealed but since the judge in question must make the decision first then I suppose you could say it is voluntary in the sense that nobody can force the recusal except on appeal.

As a practical matter, in my experience, judges strain to make sure there is no possible taint of bias and sometimes it is hard to know whether recusal is appropriate in the circumstances.