The New York Times
November 12, 2008
One lesson of the 2008 election season is the escalating threat to the integrity and independence of the justice system from big-money state judicial campaigns.
In all, 26 State Supreme Court seats in 15 states were contested. Campaign filings prior to the election showed that the candidates had raised $29.4 million — almost the same as the 2006 cycle when five states broke judicial fund-raising records. As before, much of the money came from wealthy interests hoping to buy favorable court rulings.
Third-party groups looking to tilt the scales of justices also played a large role. According to the Brennan Center for Justice at the New York University School of Law, four of the five biggest spenders on television advertising this year were groups other than campaigns.
Now, a case from West Virginia offers the United States Supreme Court a chance to help rescue the fairness of state courts from the sea of special-interest money. The case involves a bald attempt by the chief executive of Massey Energy to purchase a favorable decision by spending $3 million to help elect a state justice — who subsequently voted to throw out a major damage award against the company.
For some reason, the court seems reluctant to add the case to the docket for the current term. Since the term began, the Massey case has been on the agenda at four meetings where the justices considered new cases. It will be on the agenda again at a meeting on Friday.
Judicial neutrality and the appearance of neutrality are basic to due process. The justices would do a great deal to protect essential fairness by making clear that outsize campaign expenditures trigger a duty of recusal on the part of the beneficiaries. Surely there must be the requisite four votes on the Supreme Court for taking the case.
A version of this article appeared in print on November 13, 2008, on page A36 of the New York edition.