Judge Ruling in Favor of Big Contributor Ruled Illegal by U.S. Supreme Court

When a coal company spent $3 million to help elect the Chief Justice of the West Virginia Supreme Court and that Chief Justice turned around and overturned a $50 million jury judgment against the company, many commentators thought it stunk of corruption and that the judge should have recused himself from a case involving his biggest political supporter.

This week, the US Supreme Court agreed.  The Court argued in the much anticipated case, Caperton v Massey, that a judge must recuse her or himself from hearing a case when there is "the probability of actual bias on the part of the judge or decision maker."  This is, of course, a high bar and one that will only rarely be reached in practice -- but a $3 million contribution equal to more than all other campaign spending combined amounts to "extreme" facts requiring recusal, since otherwise there would be no limit on judges' ability to decide cases involving their biggest political supporters. 

The ruling was also significant because it dealt with not direct campaign contributions, but independent expenditures uncoordinated with the Chief Justice's campaign.  This has given campaign finance scholars some hope that there are five votes for at least some regulation of independent campaign spending, such as 527 committees, which can spend unlimited amounts of money in elections. 

Judicial Independence is Under Attack:  As we've highlighted in a previous Dispatch, the problem of money in judicial elections has been growing fast.  Between 2000 and 2007, state Supreme Court candidates raised twice as much in campaign contributions than was raised in all of the 1990s.  And this isn't happening by accident.  Business groups and conservative activists, including Karl Rove, have specifically targeted these races because the potential reward is great, yet the cost of flooding these races with cash is relatively low compared with other statewide or national races that often have less of a direct payoff for contributors.

In West Virginia in particular, the appearance of corruption has cast a pale over the state's highest court.  The previous chief justice was also involved in a scandal related to Massey Energy for earlier having refused to recuse himself from the same case that caused the current controversy.  In that instance pictures surfaced of the chief justice vacationing with Massey's CEO in Monte Carlo at the same time that the Massey was appealing the lower court ruling against them that the West Virginia Supreme Court ended up overturning.  Thankfully, in that instance the chief justice was voted out.

Restoring Judicial Independence:  In many of the 36 state that elect judges, both the public and judges themselves are losing faith in the process.  But there are several that have systems which prevent or deter outrageous spending on judicial campaigns and the appearance or reality of injustice that results.

  • Clean Judicial ElectionsNorth Carolina and New Mexico have both adopted public financing of judicial elections.  North Carolina's extremely popular program has seen majority participation among candidates, and almost all winning candidates are now clean elections participants.  Public financing of judicial campaigns is also supported by the American Bar Association, which adopted it as an official policy in 2002
  • Merit Selection with Retention Elections:  The so-called "Missouri plan" combines independent merit selection with a process of retention elections where voters can recall a justice if unsatisfied with his or her job performance.  Such systems have almost uniformly been free of expensive campaign spending and politicized campaigns, and these systems instill confidence in the public.  In Missouri, 68 percent of voters trust the Missouri Supreme Court to adhere to the letter of the law rather than their own political beliefs.

Both of these systems work well to squeeze special-interest money out of the judicial system, helping to ensure a fair hearing for consumers and workers.  Hopefully the notoriety that the Caperton case has generated will inspire more states to take back their judiciaries from the corporate interests that have hijacked them in many places.

Justice At Stake Campaign
Brennan Center for Justice - Fair Courts
American Bar Association - Report of the Commission on Public Financing of Judicial Campaigns
American Judicature Society - Judicial Selection in the States
Progressive States Network - Shutting the Courtroom Door: How the Corporate Right Mobilized in the States
North Carolina Voters for Clean Elections - Judicial Elections
Democracy North Carolina — A Profile of the Judicial Public Financing Program, 2004-2006
North Carolina Judicial Campaign Reform Act Summary
New York Times - Rendering Justice, With One Eye on Re-election
New York Times - Justices Tell Judges Not to Rule on Major Backers