Supreme Court mulls judicial bias

By Joan Biskupic
USA Today

March 4, 2009

WASHINGTON — As the Supreme Court heard an important case about judicial independence Tuesday, justices appeared open to crafting a rule that could lead elected state judges to disqualify themselves from disputes involving big donors.

"The system that we have depended on up to this point is not working very well," Justice David Souter said.

Justice Ruth Bader Ginsburg referred to the dramatic rise in campaign contributions for state judicial elections and concerns about the possible taint of big money on rulings and said, "We have … millions of dollars spent. That's the context in which this case arises."

Justice Anthony Kennedy, typically a key vote when the court is divided, suggested by his questions that he was open to a new, yet narrow, rule that would require disqualification in some cases. "Our whole system is designed to ensure confidence in our judgments," he said.

Tuesday's dispute centered on A.T. Massey Coal, whose CEO, Donald Blankenship, contributed $3 million to help elect a West Virginia Supreme Court justice, Brent Benjamin, in 2004. Benjamin later cast a crucial vote that overturned a $50 million verdict in a fraud lawsuit Massey had lost to Hugh Caperton, owner of a rival coal company.

The arguments drew a packed courtroom. Among the spectators was retired justice Sandra Day O'Connor, who has spoken about the dangers of big campaign contributions to judicial independence.

The specific question is whether a judge's failure to disqualify himself from a case involving his principal supporter violates constitutional due process of law.

Lawyer Theodore Olson, representing Caperton, said the money Blankenship spent — 60% of all contributions in the race — created an "objective" probability that Benjamin would be biased toward the Massey coal company.

"The circumstance in this case involves the appearance of judges being bought," Olson said. He noted that the Conference of Chief Justices, the national organization of top state judges, has asked the Supreme Court to set new standards for when judges should disqualify from a dispute.

"There is a financial arms race in judicial elections," Olson said of the money spent on contested elections.

Lawyer Andrew Frey, for Massey Coal, countered that the Supreme Court should leave the issue to state courts and legislatures.

Thirty-nine states elect judges and have varying standards on when a judge should sit out a case. Most, like West Virginia, let the individual judge decide. Federal judges are appointed by the president.

At the Supreme Court, each justice decides whether to sit out a case.

Frey said the proposed standard by Olson, a former U.S. solicitor general, was too vague. He said there was no basis in the court's past cases for a new rule tied to an appearance of bias.

Chief Justice John Roberts and Justice Antonin Scalia were most outspokenly sympathetic to Frey's view, and they vigorously challenged Olson.

" 'Probability' is a loose term," Roberts asserted. He raised numerous scenarios of trade groups making campaign contributions and asked, for example, whether a judge who received a large contribution from the United Mine Workers would have to sit out every labor case.

Scalia asked why he would not have had to disqualify himself from cases involving President Reagan, who appointed him.

Olson said there is a difference between life-tenured appointments and a situation in which a benefactor has given millions to help elect a judge who would rule on a pending case. Here, Olson said, the amount of the contribution and its timing matter.

Kennedy said he was inclined to support a standard tied to "the appearance" of bias. "Now, of course, it has to be controlled. It has to be precise. But," he told Frey, "I do have that inclination."

Frey urged the justices to consider whether they, as individual judges, were able to rule impartially in situations that may appear to involve bias.

Olson countered that justices should ask, if they were a party to the case, "Would you think it would be fair … if the judge … was selected with a $3 million subsidy by your opponent."

A ruling in the case of Caperton v. Massey Coal is likely by July.