THE BLOG

Judges Not For Sale

06/09/2009 01:58 pm ET | Updated May 25, 2011


by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ali Frick, Ryan Powers, and Ian Millhiser

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In a 5-4 decision yesterday, the Supreme Court ruled "that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias." The decision, "the first to say the Constitution's due process clause has a role to play in policing the role of money in judicial elections," found that excessive campaign contributions can pose "an unconstitutional threat to a fair trial." In his opinion for the majority, Justice Anthony Kennedy wrote, "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case." The case in question, which was the basis for a John Grisham legal thriller, involves America's fourth largest coal company, Massey Energy, and its CEO, Don Blankenship. After Massey lost a $50 million verdict in a fraud lawsuit brought by Hugh Caperton and his small, independent Harman Mining Co., Massey appealed the decision. "As the case moved toward appeals, Blankenship contributed $3 million to help unseat incumbent Democratic state supreme court Judge Warren McGraw in his race against a Republican, Charleston lawyer Brent Benjamin -- 60 percent of the total spent in favor of Benjamin and against McGraw." Benjamin won the election and three years later, when Massey's appeal reached the West Virginia Supreme Court, he cast a crucial vote overturning the $50 million verdict. "I remember looking up at a judge who had just gotten $3 million...to be elected and thinking, 'How in the world is this fair?'" said Caperton. Noting Benjamin's refusal to recuse himself, despite repeated requests, Caperton took his case to the Supreme Court. Now, for the first time, the court has "set down a rule for disqualifications arising from money judges receive as they campaign for election to the bench."

'A SERIOUS RISK OF ACTUAL BIAS': "Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause," wrote Kennedy in the majority's opinion, who was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens. "There is a serious risk of actual bias -- based on objective and reasonable perceptions -- when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case." But all four of the Court's most conservative members voted that there is no problem with a wealthy businessman buying a judge. In a dissent joined by conservative justices Antonin Scalia, Clarence Thomas, and Samuel Alito, Chief Justice John Roberts argued that this decision would encourage "groundless" charges that other "judges are biased." "The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case," Roberts argued . The Center for American Progress Action Fund's Ian Millhiser pointed out that, while "the result in this narrowly-decided case hinges on the vote of retiring Justice David Souter, it appears that Supreme Court nominee Judge Sonia Sotomayor agrees with Souter that judges cannot be for sale." In a 1996 speech, Sotomayor argued that "[w]e would never condone private gifts to judges about to decide a case implicating the gift-givers' interests," yet "our system of election financing permits extensive private, including corporate, financing of candidates' campaigns, raising again and again the question what the difference is between contributions and bribes."

MONEY IN JUDICIAL ELECTIONS: The risk of the wealthy influencing justice through campaign contributions has become graver in recent years. Currently, 39 states "elect at least some of their judges, and election campaigns, particularly for state supreme courts, have in recent years grown increasingly expensive and nasty." The Conference of Chief Justices, a national group of top state judges, has found that 60 percent of all state appellate judges and 80 percent of trial judges face election, which the organization called "high-dollar free-for-alls" in a neutral brief submitted in Caperton v. Massey. "From 2000 to 2007, $168 million was spent on contested elections for states' highest courts, up from $87 million from 1990 to 1999," according to the Brennan Center for Justice. The New York Times reports that "elected judges routinely accept contributions from lawyers and litigants who appear before them, and they seldom disqualify themselves for cases involving donors." Perhaps the most prominent critic of money in the judicial selection process is former Supreme Court Justice Sandra Day O'Connor, who sat in the courtroom during oral arguments in the Caperton case. "The money and vitriol being put into judicial campaigns has reached new and dangerous levels," said O'Connor in April. In terms of vitriol, it's hard to find a more stunning example than Blankenship's $3 million attack on Judge Warren McGraw.

BLANKENSHIP'S DIRTY POLITICS: As the CEO of one of the top coal companies in the country, Blankenship, who sits on the boards of the US Chamber of Commerce and the National Mining Association, is no stranger to getting his hands dirty in politics. Though Blankenship donated only $1,000 to Brent Benjamin's campaign in 2004, the $3 million he spent to influence the election was mostly dedicated to "television advertisements aimed at defeating the incumbent justice, Warren R. McGraw." Under the auspices of his "And For The Sake of the Kids" PAC, Blankenship accused McGraw of voting to "free an incarcerated child rapist, and of allowing that rapist to work in a public school." McGraw lost the race and afterwards described the damage that Blankenship had done to his reputation. "They say our court set a child molester loose in our schools. It's absolutely untrue. I'm embarrassed to go out in public. They've absolutely destroyed me," McGraw told the New York Times. Blankenship has no qualms about demonizing his political opponents. Last year, he compared his critics to "enemies" like Osama Bin Laden, adding that "it is a great pleasure for me to be criticized by the communists and the atheists of the Charleston Gazette." Previously, he was caught on tape threatening to shoot an ABC reporter and then assaulting him.