Judicial Recusal

(This was half-written when I left for vacation and is now rather untimely.)

The Supreme Court handed down an interesting ruling two weeks ago, Caperton v. A.T. Massey Coal, et al. (08-22), on judicial ethics. From Justice Kennedy’s opinion:

After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections.  Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee.  Benjamin won by fewer than 50,000 votes.  Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement.  Jusice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant.  The court then reversed the $50 million verdict.  During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict.  Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.

Jonathan Turley has a discussion of the opinion here.

This is a positive outcome. Justice Benjamin should have recused himself from the very beginning. The question, though, is how to apply this ruling in practice. If a corporation donates $3 million dollars to your opponent, who loses, need you recuse yourself?

Or, in a more topical possibility, consider the upcoming retention vote for Ron George, the Chief Justice of California. Suppose the court had struck-down Proposition 8 as an improper revision of the state constitution. We could, reasonably, expect a considerable campaign against his retention. If the campaign were significantly funded by Mormons (but not the church itself), but he was nevertheless retained, would he need to recuse himself from future cases involving Mormons or gay marriage?

So, while I favor the particular outcome here, I worry that the decision could create a kind of heads-I-win tails-you-lose gamesmanship for corporations and wealthy individuals in judicial election financing. Then again, I tend to think judges shouldn’t be elected in any event.

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Published in: on June 22, 2009 at 9:01 am  Leave a Comment  
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