Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
As anticipated by a Cooley Law School symposium in March, the Supreme Court has ruled in a landmark case on the question of whether judges must recuse themselves in cases where one of the parties has given major financial contributions to the judge's election campaigns. The court ruled 5-4 that a judge must recuse themselves from such a case. See the full ruling (PDF).
The case was Caperton v Massey, which deals with an energy company owner who spent $3 million to get a justice, Brent Benjamin, elected to the West Virginia Supreme Court. Once in office, the justice refused to recuse himself from hearing an appeal that was pending before the court involving the energy company, casting the deciding vote in favor of his campaign contributor.
The court ruled that a party to the case does not need to prove actual bias on the part of the justice, concluding that when a situation contains such a clear conflict of interest, due process requires that they step aside from deciding in the case:
Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin's subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The proper inquiry centers on the contribution's relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin's victory. In an election decided by fewer than 50,000 votes, Blankenship's campaign contributions--compared to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the outcome. And the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented." The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the other parties' con-sent--a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal.
Similar issues have arisen in Michigan, where the state Supreme Court is currently considering stronger rules on when a judge must recuse themselves in a case. With more than $7 million spent in a state Supreme Court election last fall, major campaign contributions are more and more likely to be involved in cases heard by the court.
The majority opinion was written by Justice Kennedy on behalf of himself and Justices Ginsburg, Souter, Stevens and Breyer. The dissenting opinion was written by Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito. The arguments made by the dissenters are wholly unconvincing.
They argue that the standard applied in the majority ruling - a "probability of bias" - is too vague and will result in a flood of challenges that require the courts to apply that standard more and more specifically as each situation has to be addressed.
In departing from this clear line between when recusal is constitutionally required and when it is not, the majority repeatedly emphasizes the need for an "objective"standard. The majority's analysis is "objective" in that it does not inquire into Justice Benjamin's motives or decisionmaking process. But the standard the majority articulates--"probability of bias"--fails to provide clear, workable guidance for future cases. At the most basic level, it is unclear whether the new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.But there are other fundamental questions as well.With little help from the majority, courts will now have to determine:
1. How much money is too much money? What level of contribution or expenditure gives rise to a "probability of bias"?
2. How do we determine whether a given expenditure is"disproportionate"? Disproportionate to what?
3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate's campaign? What about contributions to independent outside groups supporting a candidate?
4. Does it matter whether the litigant has contributed toother candidates or made large expenditures in connection with other elections?
5. Does the amount at issue in the case matter? What if this case were an employment dispute with only$10,000 at stake? What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?
6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?
7. How long does the probability of bias last? Does the probability of bias diminish over time as the election recedes? Does it matter whether the judge plans to run for reelection?
8. What if the "disproportionately" large expenditure is made by an industry association, trade union, physicians' group, or the plaintiffs' bar? Must the judge recuse in all cases that affect the association's interests? Must the judge recuse in all cases in which a party or lawyer is a member of that group? Does it matter how much the litigant contributed to the association?
9. What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received "disproportionate" support from individuals who feel strongly about either side of that issue? If the supporter wants to help elect judges who are "tough on crime," must the judge recuse in all criminal cases?
The dissent presents many more such questions, all of them perfectly reasonable and good questions that the courts will, indeed, have to address. But this is no different from many other standards that the Supreme Court applies on a daily basis. One could just as easily come up with a series of nearly identical questions about the rational basis test, the compelling state interest test, the undue burden test and many more important concepts applied by the courts every day. This is what courts do, for crying out loud. It is their primary job.
The answer to those concerns is to attempt to answer those questions as objectively and completed as they can and then wait for future cases to refine them. The answer cannot be, as the dissenters would have it, to say this is entirely a matter for state bar associations and legislatures to decide and that no one's due process could ever be violated even in a case as outrageous as this one.
Politics
Comments
It is no surprise Scalia dissented. He doesn't understand what "recusal" means.
Posted by: Lynx | June 9, 2009 9:34 AM
I see a lot more cases coming out with similar results. I don't know, though, maybe we'll get lucky and Roberts will slowly slide a little more to the center. I've given up hope on Scalia or Thomas, and never really had any for Alito, but I'd love to be shown wrong.
Those four seem very pro-government though, which is pretty much opposite of what the GOP has always claimed.
Posted by: FastLane | June 9, 2009 9:36 AM
Of course, you lot could avoid the whole mess in the first place by ending the absurd practice of electing judges.
Posted by: Eamon Knight | June 9, 2009 9:37 AM
Lynx-
Scalia actually recused himself from the Newdow case because he had made public statements about the case and about Newdow.
Posted by: Ed Brayton | June 9, 2009 10:11 AM
I can kind of see (though I don't agree with) an argument that recusal is never constitutinally required, ie a judge has full discretion over recusal, but may be impeached if it's decided that he/she acted improperly in a given instance. But as I understand, that's not at all the argument that the minority put forward. They're actually arguing that a case, in which someone appealing a decision to the Supreme Court spent more to elect the eventual judge than either candidate's own campaigns did, is less of a threat to due process than forcing the judge to recuse.
"The end result will dofar more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."
In what universe would the minority position inspire confidence in judicial impartiality? What is it about judges, politicians, and for that matter other professional bodies, that makes them unable to see how much worse it reflects on them to have weak ethical standards than it does to enforce strict standards?
Posted by: Ginger Yellow | June 9, 2009 10:15 AM
This is what courts do, for crying out loud. It is their primary job.
A job the minority, and particularly Scalia, really don't want to do. In which case they should just retire and find jobs they DO want to do. Seriously, from the excerpts I've heard so far, Scalia isn't just wrong on the legal reasoning, he's totally pissed because he's being forced to face reality, admit consequences, and make judgements. The nerve of those low-down peons, thinking their stupid little problems are worth wasting a judge's precious time!
"The end result will dofar more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."
This is a sign of the authoritarian mindset: it's okay for the authorities to be wrong, and even derelict in their duty; but publicly criticizing the authorities will erode public confidence. Kill the messenger!
1. How much money is too much money? What level of contribution or expenditure gives rise to a "probability of bias"?
If it's enough money for one of the litigants to notice, and make an appeal like the one that was just heard, then it's too much. QED. (That's Latin for DUH.)
In any case, I'm with Eamon: GET RID OF ELECTIVE JUDGES!
Posted by: Raging Bee | June 9, 2009 10:43 AM
I'm unsurprised that Justice Alito dissented. The evidence presented in the Judicial Committee hearings for his nomination clearly presented a zealous, though quiet, ideologue with a huge chip on his shoulder regarding liberal values. It was also evident in those hearings that Alito was committed to promoting a fascist form of corporatism that violates our rights and justice as noted in the Constitution. And while not wholly surprised in Chief Justice Roberts, I'm disappointed someone with so much talent and intelligence is also a victim of the sort of delusion inherent in conservative thinking.
CJ Roberts is a great talent; but the evidence since his appointment clearly shows he blatantly lied about his so-called modest style of jurisprudence to the Judicial Committee in his hearings. He's as much of an ideologue as Alito, Thomas, and Scalia on certain matters that contradict both the Constitution and its principles though faithfully subscribing to conservative political objectives.
I fear the eventual loss of Justice Stevens, who is able to out-write and argue Justices Roberts, Alito, Scalia and of course Thomas. I predict his loss will cause the right on the bench to become even more fascist in their opinions unless Obama starts replacing retiring justices with people with some intellectual heft to challenge their opinions; Sotomayor appears to not fit that bill and therefore I think is a mediocre pick. Man I hope I'm wrong about her but she seems be a near-Breyer clone.
We need three strong fearless liberals if we're ever going to see any fealty to the Constitution from the conservatives on the court, with the exception of Justice Kennedy who I think does not use his power to promote political objectives like the other four conservative justices.
Posted by: Michael Heath | June 9, 2009 10:54 AM
OK, I stand corrected. He understands it, he just doesn't think it applies to him most of the time.
Posted by: Lynx | June 9, 2009 10:58 AM
This is why judge shouldn't be an elected position.
Posted by: Ace of Sevens | June 9, 2009 11:07 AM
Actual Don Blankenship Quote overheard at the party celebrating Brent Benjamin's election.
"With all the money I spent on her idiot husband the bitch could at least learn my name."
The guy is the devil, even the Massey logo is evil-looking.
Posted by: Abstruse | June 9, 2009 11:40 AM
We need three strong fearless liberals if we're ever going to see any fealty to the Constitution from the conservatives on the court, with the exception of Justice Kennedy who I think does not use his power to promote political objectives like the other four conservative justices.
Kind of sad, ironic, but sad, that the folks who most wrap themselves in the flag and tout their patriotism seem to have so little regard for the core principles of this country... *sigh*
Posted by: dogmeatIB | June 9, 2009 12:13 PM
Electing judges is probably the dumbest political institution ever devised in the U.S. I think the very practice undermines due process, as it is not unknown for judges running for re-election to suddenly get "tougher on crime" by allowing in evidence seized in violation of the 4th amendment. At least one aspect of this corrupt system will now be cosntrained, and we can hope a case occurs where all the judges must recuse themselves because all received campaign funds from one or more of the parties to the case before them--perhaps that will force states to come to grips with the need to reform the system. Even a wholly political appointment process is preferable to elections.
Raging Bee @6, right on, particularly your second point. Dammit, it's so much more interesting when we don't agree with each other!
Posted by: James Hanley | June 9, 2009 12:33 PM
The dissenting opinion was written by Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito.
Shorter dissent: Without unbridled corruption and flaming hostility toward the public interest, America wouldn't be our America!!!
Posted by: Pierce R. Butler | June 9, 2009 1:12 PM
The plutocracy's rebuttal.
Posted by: Michael Heath | June 9, 2009 1:24 PM
Heath: Thanks for posting that vile-assed, shamelessly-pro-corruption WSJ piece. I love how they pretend an obvious case of bias resulting from an obviously-bought election is really so complicated it would take a diverse team of scientists to decide right from wrong. That's a typical can-artist's defense: "You can't judge me! Your simple notions of right and wrong don't make any sense here." And they wonder why there's so much hatred toward "elitists?"
The subtitle was amusing too: "The Supremes Trample on State Courts." As if spending huge amounts of money to influence who gets to judge your case isn't "trampling" on anyone.
Oh, and here's this gem of win:
If $3 million in donations meets the probable bias test, what about $1 million, or $10,000?
Do we ask that question about old-fashioned direct bribes? I, for one, don't see much of a difference.
For that matter, should we assume judges feel a "debt of hostility" toward those who contribute to opponents?
Sure, especially if a judge sees a party he judged against using their money to replace him with a more compliant judge, with the probable effect of nullifying the decision. Who could blame him?
Hypothetical question: would the WSJ be complaining if the party buying the election had been, say, ACORN?
Posted by: Raging Bee | June 9, 2009 3:53 PM
The weird bit here is that lawyers already have two ethical systems in place, and both are very clear about conflicts of interest: If there is even the possibility of a conflict, you don't take the case. And it works, as there are very few complaints to state Bars about conflicts. All of the objections raised in the dissent have already been worked out in the states. There is no problem for anyone who hasn't bought a personal judge.
Oh, and judicial elections are evil. There is absolutely nothing good that can come of such an invitation to corruption.
Posted by: kehrsam | June 9, 2009 5:02 PM
My personal opinion is the "If there is a clear APPEARANCE of conflict of interest, then it IS a conflict of interest." I don't believe that a further motive needs to be found. I believe this is necessary in order for doubt to be removed (or at least diminished) about judicial decisions.
Posted by: Mobius | June 9, 2009 5:26 PM
kehrsam stated:
Did this process work in this case? Did this judge get punished for taking the case by the state powers? If so, why isn't this case moot? Or was your comment satire?
I also want to add my two cents about the idiocy of electing judges. That is one of the few items in politics I find can be achieve a position using mere everyday common sense. I also think the same should go for county sheriffs, Attorney Generals, and Prosecuting Attorneys. Hires and promotions should be based on functional excellence, not political skills.
Posted by: Michael Heath | June 9, 2009 5:41 PM
"Not only must justice be done, but justice must be seen to be done."
Posted by: mrcreosote | June 10, 2009 12:07 AM
For a good while before retirement from a state regulating agency, my dad had to deal with Blankenship on a regular basis. I've never met anyone that my normally restrained and forgiving father thought was more of a bullheaded idiot. Blankenship is famous in WV, both as one of the largest employers, and as one of the most corrupt, law-flouting, corporate tools to ever exist. Blankenship's father ran Massey energy successfully without being a total ass. The son has been such a disaster that he buys billboards reminding people what he's done for them (i.e., "You are employed by ME").
He bought the judicial election; on that there's no question. The fact that he didn't get exactly what he wanted from it has a bunch of old regulators smiling from ear to ear.
Posted by: Ranson | June 10, 2009 7:39 AM
This is from Wiki, so it's suspect, but, WOW! Talk about being strapped!
Board of directors
Don Blankenship, chairman and CEO, Massey Energy
James B. Crawford, former chairman and CEO, James River Coal Company
General Robert H. Foglesong, retired four-star general, U.S. Air Force
Richard M. Gabrys, former vice chairman, Deloitte & Touche LLP
Admiral Bobby Inman, former director, National Security Agency
Lady Barbara Thomas Judge, chairman, United Kingdom Atomic Energy Authority
Dan R. Moore, chairman, Moore Group, Inc.
Baxter F. Phillips Jr., president, Massey Energy
Stanley C. Suboleski, former commissioner, Federal Mine Safety and Health Review Commission
In response to a prolonged citizen campaign focusing on Massey's worker safety and environmental record, on May 29, 2009 Ohio State University President E. Gordon Gee announced his resignation from the Board of Massey Energy[20]
Posted by: democommie | June 10, 2009 10:14 AM
Michael: State Supreme Court Justices have been disbarred before, so it can happen. In this case, the injured party decided to continue the ongoing lawsuit rather than press for Bar sanctions (which may also be ongoing, I don't know). My point is merely that the majority opinion is well within the current mainstream of judicial self-regulation. The dissent -- unfortunately -- is consistent with the descent into blind corporatism that is currently strangling any conservatism that is not already fundamentalist.
Posted by: kehrsam | June 10, 2009 10:20 AM
As large--I'd argue much larger from the public's viewpoint--is the recusal issue as it continues to confront elected/appointed public servants (read: legislators) re "no strings" campaign contributions/favorables.
I guess the SC felt $3mil was a good number to start with.
Public campaign financing and limiting lobbist entry to the House & Senate office buildings to daily hours/days per week is long over due. Please don't beat me up.
Posted by: Ted Buila | September 6, 2009 6:35 PM