Judicial Ethics, Campaign Financing of Judges, and Recusal Standards

High Court Split Over Case on Judicial Ethics

The Supreme Court appeared to be deeply split over whether an elected state judge may rule on a case where one party spent $3 million to help get him elected.

Justice Anthony Kennedy appeared to hold the casting vote in a likely 5-4 decision, and he showed some sympathy for the plaintiff's argument that the judge should have been forced off the case.

The dispute involves a ruling at the West Virginia Supreme Court of Appeals, where Justice Brent Benjamin joined a 3-2 majority setting aside a $50 million judgment against units of Massey Energy Co. The owner of a small rival coal company, which claimed it was driven out of business by Massey, appealed. He argued that being judged by Justice Benjamin, who was elected with major assistance from Massey, violates the 14th Amendment guarantee that litigants receive "due process of law."

Earlier Supreme Court opinions have held that judges may not have a financial stake in a case's outcome -- such as being paid only for convictions -- or be involved in separate personal litigation that could be affected by the ruling. In 2002, the court struck down a state rule forbidding judicial candidates from stating their views on political or legal issues that could come before them.

But the court never has confronted a question like that in Caperton v. A.T. Massey Coal Co., whose intersection of money, politics and judicial ethics inspired a 2008 John Grisham novel, "The Appeal." Activists who oppose popular voting for state judges say the Massey case illustrates the problems with an elected judiciary.

Here in Texas, where we elect our judges, these concerns have been voiced for quite a while. I support an elected judiciary, but these types of situations do raise concerns.

More here: Justices Consider When a Judge Should Bow Out

Analysis here, from SCOTUS blog: Analysis: In search of a limiting principle

Tugged between a sense that a constitutional ruling on judges’ duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios, the Supreme Court set itself a difficult task as it moves toward a ruling in Caperton, et al., v. A.T. Massey Coal Co., et al. (08-22), heard Tuesday during an intense hour of exchanges with two harried advocates.

While Justice Anthony M. Kennedy may wind up with the deciding vote in a Court plainly split over the issue, he himself seemed torn between a standard of recusal that would be precise in scope, and a standard that would be no more specific than “an appearance of bias.”

Case analysis and links to briefs here. Transcript of oral argument here.