Elected Judges Redux

          Last month I wrote in this space about an important case, Caperton v. Massey, which at the time was pending before the United States Supreme Court. On June 8, the Supreme Court issued its decision in the landmark case, reversing the decision of the West Virginia Supreme Court of Appeals by a 5 to 4 vote. It is a watershed decision because it is the first time that the Supreme Court has ruled that the Constitution can require an elected judge to step aside in a particular case based on campaign spending in state judicial races.

          This landmark case is reported to have brought together an unlikely set of allies who supported Mr. Caperton in his bid for a reversal of the state court decision based upon claims of due process violations. In Caperton v. Massey, the Supreme Court was faced with the question of whether the fundamental right to a fair hearing before an impartial judiciary required disqualification of a judge where one party in the litigation had given unusually large campaign contributions to the judge while the party's case was pending. With an epic flood of campaign dollars nationwide in judicial elections in recent years, former Solicitor General Theodore Olson argued before the Supreme Court that the Constitution's due-process clause required a West Virginia judge to recuse himself from the case where a Massey executive had contributed $3 million to the campaign to elect that judge. Those expenditures, which came at the same time the court was considering the executive's case, were approximately 60% of the total contributions to the judge's election campaign.

          Emphasizing that a "fair trial in a fair tribunal is a basic requirement of due process," the Supreme Court ruled that the Constitution required recusal under the circumstances of the case, Justice Kennedy stated in delivering the opinion of the Court. Curiously, the court broke down along its usual lines, although the public’s posture on the case had made for an unusual coalition among normally nonaligned adversaries. The strange bedfellows included former state Supreme Court justices, corporations like Wal-Mart and Lockheed Martin, and advocates for fair courts like the Brennan Center for Justice and the Campaign Legal Center. However, within the court, Justice Kennedy was joined by Justices Stevens, Souter, Ginsburg and Breyer, with Chief Judge Roberts issuing a dissenting opinion that was joined by Justices Scalia, Thomas and Alito. Justice Scalia also filed a separate dissenting opinion.

          Notably,  a finding of actual bias was not relevant to the court’s inquiry or their decision. In fact, the court assumed that the judge under the microscope, Judge Benjamin, believed he was able to be impartial and objective and acted accordingly. Even so, the court ruled that due process required his recusal because of the appearance of judicial impropriety.  The court's dissenters stated that the decision created an unworkable rule for when judges should step aside. There is no hard and fast rule that comes out of the court’s opinion; it remains an ethical and due process issue to be decided on a case by case basis. "This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be," Chief Justice Roberts wrote in dissent. Justice Roberts continued by stating: "I fear that the court's decision will undermine rather than promote these values [of maintaining an impartial judiciary]."

          West Virginia, like 38 other states, elects its judges rather than appointing them. I remain very thankful that New Hampshire remains one of the states that appoints rather than elects its judges.