Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The U.S. Supreme Court is set to hear a landmark case over whether state judges must recuse themselves from cases involving those who have made large contributions to their campaigns. A group of 27 former chief justices and justices of state supreme courts is urging the high court to rule that judges must recuse themselves in such cases.
The case involves a lawsuit in West Virginia, where a large energy company lost a $50 million fraud judgment. After the verdict was handed down but before the appeals court could hear the case, the owner of the energy company donated $3 million to the campaign of a candidate for the same court that heard the appeal. The judge refused to recuse himself from the case and he cast the deciding vote as the appeals court reversed the jury award from the lower court.
The original plaintiff in that suit is now asking the Supreme Court to rule that state judges must recuse themselves and not participate in cases where one of the parties has been a major contributor, arguing that a failure to do so violates the right to due process and a fair trial.
The group of 27 former state supreme court justices, including former Michigan Chief Justice Conrad L. Mallett, has filed an amicus brief in the case that argues that "the only way to preserve a litigant's due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge's own partiality, but also when there exists a reasonable appearance of partiality or impropriety."
This is absolutely crucial. A few months ago I published an article at the Michigan Messenger about studies of the state supreme courts of Ohio and Louisiana that showed clearly that campaign contributions do affect the outcomes of cases. A study of the Louisiana Supreme Court published earlier this year found that justices were as much as 300 percent more likely to vote in favor of a contributor than they were in cases where neither side had given money to their campaigns. A 2006 study of the Ohio Supreme Court found that most justices voted for the side of major donors to their campaigns more than 70 percent of the time.
The ultimate solution is to do away with judicial elections, as is done at the federal level.
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Voting for judges is crazy, but there is a legitimate, alternative explanation for justices voting patterns. Contributors are likely most likely to be given to justices who's viewpoint is similar to the donors, so it is not surprising that they vote that way. Regardless, any activity likely to be perceived as a conflict of interest should be avoided.
Posted by: Telford | January 9, 2009 10:27 AM
Judges should be appointed, not elected. I feel the same way about Sherrifs and Prosecuting Attorneys. Their attainment of these positions should be about proven functional excellence.
$3 million in campaign contributions by one benefactor for one judge in West Virginia!!! I would have thought the price would have been around $50,000 bundled up in aprox. $2000 increments. I'm amazed that one group can give $3 million to anyone, let alone a judge running for state office in such a small state.
Posted by: Michael Heath | January 9, 2009 10:30 AM
In West Virginia, where coal is by far the largest industry, a $3mil investment in a judge likely to hear no less than one $50mil case against you (and very likely more)is a tiny drop. There's lots of return to be gained, there. Without reading the article, it sounds like Massey Energy. They do their best to try and operate "above the law" in the state. The CEO is frickin' nuts, and has no sense of right and wrong. He skirts business and environmental laws regularly, daring people to come after him, and acts shocked when they do.
Yup, looking at the brief, it's Massey.
Posted by: Ranson | January 9, 2009 10:44 AM
From over here in the UK, the very idea that Judges (or Sheriffs, or DAs) might be elected seems ludicrous and risks serious miscarriages of justice. If a Judge (or Sheriff, or prosecutor) has to rely on their popularity with the general public, the risk is always run that they may do what is popular rather than what is right.
Posted by: CommiusRex | January 9, 2009 10:44 AM
Electing the people who prosecute justice, on any level, is frankly insane. The people who make the laws should do so with an eye to what the people want, so politicians are appropriate. The people who enforce the laws, however, should do so impartially, so politicians are the last thing you want. Judges (and sheriffs and so on) shouldn't be elected any more than doctors or farmers or teachers. I want the best person for the job, not the most popular, and I don't want them beholden to anything but their job.
Thankfully, we don't do that up here in Canada.
--Penn, in Canada
Posted by: Penn | January 9, 2009 10:57 AM
As Telford says, there is a possible innocent explanation for much of the correlation: donors contributing to judges who they know are likely to vote their way. In other words, a judges ideology could be the cause of both the campaign contribution and the voting record, rather than contribution being the cause of the voting.
Yes, I'd be surprised if the donations didn't directly cause some of the favorable rulings, but the correlation alone doesn't demonstrate this or tell us how strong the effect is.
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Doing what's popular instead of what's right is a problem for any elected office, and for any non-lifetime appointed office. That said, I do think popular elections are inappropriate for judges and law enforcement.
Posted by: MRW | January 9, 2009 11:02 AM
Anyone taking bets on how Alito would rule on this?
Posted by: c-serpent | January 9, 2009 11:10 AM
The evidence certainly suggests that electing judges, prosecutors, and DAs is stupid - but what's the alternative? Appointing them with life tenure, like the Supreme Court? So now the Mayor, elected with those same campaign funds, appoints his brother-in-law or drinking buddy - with the same results in the court cases.
On the surface, changing from elections to appointments seems like a good idea...but I'm not sure it would have any real effect on these local jurisdictions. The corruption would still be ever-present.
Posted by: BobApril | January 11, 2009 6:19 AM