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Reform Advocates Hail Ruling on Elected Judges

POSTED: 07:26 AM ET, 06/ 9/2009 by Sarah Fitzpatrick

Judicial reform advocates are hailing yesterday's Supreme Court ruling requiring elected judges to step aside in "extreme" cases where campaign donations may create the perception of bias. The 5-4 decision (PDF) will have wide-ranging consequences for state judicial election law, and highlights the growing role of special interest groups in campaign fundraising.

"The facts now before us are extreme by any measure," Justice Anthony M. Kennedy wrote for the majority. "The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case."

"There has been an unprecedented flood of money into judicial elections in the states," said Susan Liss, Director of the Democracy Program at the Brennan Center for Justice in a statement on the group's Web site. "And this decision makes clear that campaign contributions must not be permitted to undermine the impartiality of the courts."

Bert Brandenburg, executive director of the Justice at Stake Campaign, emphasized that new laws must be adopted at the state level. In a statement, Brandenburg called the ruling "a critical first step. But states that elect judges must get to work now, to keep campaign cash out of our courts of law."

GROWING INFLUENCE

The case — Caperton v. A. T. Massey Coal Co. — has been the subject of great attention in legal circles and has oft been cited as the inspiration for a recent John Grisham novel. The real story begins with Hugh Caperton, president of Harman Coal Co., who sued Massey Energy Co. in 1998, alleging that it used fraudulent business practices to destroy his company.

In 2002, a West Virginia jury agreed, awarding Harman $50 million. In 2004, while appealing the judgment, Massey CEO Don Blankenship spent $3 million to elect Brent D. Benjamin to the state Supreme Court — personally accounting for 60 percent of Benjamin's campaign chest. After he was elected in 2004, Benjamin rejected motions to recuse himself from the case despite his ties to the defendant, and eventually overturned the $50 million judgment in Massey's favor.

While federal judges serve life terms after nomination by the president and confirmation by the Senate, 39 states elect their judges. And a review of campaign finance data by Justice at Stake, a judicial reform group, notes that state Supreme Court candidates are raising more money than ever before. From 2000 to 2007, state candidates raised $167.8 million, more than double the total raised throughout the entire 1990s.

A 2006 New York Times review of cases in Ohio found that its Supreme Court justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time.

The same year, a Los Angeles Times investigation found that Nevada judges — even those running unopposed — routinely collected hundreds of thousands of dollars in contributions from litigants, and almost never disqualified themselves from cases tied to their contributors once they'd won.

A FUNDRAISING LOOPHOLE

The Caperton v. Massey ruling details how Blakenship was able to contribute the majority of his $3 million through a 527 group — a campaign finance loophole that enables groups to raise unlimited amounts of 'soft money' for a political campaign:

In addition to contributing the $1,000 statutory maximum to Benjamin's campaign committee, Blankenship donated almost $2.5 million to "And For The Sake Of The Kids," a political organization formed under 26 U. S. C. §527. The §527 organization opposed McGraw and supported Benjamin. Blankenship's donations accounted for more than two-thirds of the total funds it raised. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures-for direct mailings and letters soliciting donations as well as television and newspaper advertising.
To provide some perspective, Blankenship's $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin's own committee. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined."

Transcripts of oral arguments in the case can be found here (PDF).

By Sarah Fitzpatrick |  June 9, 2009; 7:26 AM ET
Previous: Tainted Syringes Slip FDA's Watch; Lobbyists Spend Millions Honoring Lawmakers; FEMA's Preparedness Gaps | Next: CIA Urges Judge To Keep Interrogation Documents Sealed; U.S. Troop Errors Resulted in Deaths of Afghan Civilians; Shell Settles Nigerian Human Rights Case

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What's shocking here, is that given all the ethical rules associated with being lawyers and judges, it took the US Supreme Court to rule on this. Any logical reading of the ethical rules would have had these judges off these cases a long time ago. Go figure.

Posted by: gloria57 | June 9, 2009 8:16 AM

Fabulous ruling. Everyone knows judges are partial...that's human, so we shouldn't pretend otherwise as it's too hard on them. Plus, it's a truly great judge who admits to working hard to put aside his or her personal feelings.

In that regard, I suggest "Justice For Sale" written by former Oklahoma Supreme Court Justice, Berry; about the justices on the Oklahoman Supreme Court who were on the take. For twenty-five years.

Berry, an honest judge, helped expose corruption on Oklahoma's highest court.

Berry writes some judges should realize they can't deal with friend fall-out that comes from ruling against long-time friends. Berry writes that its to be expected judges will lose friends, which is why they hang out with each other.

Simply put, some judges are not equipped to handle the pressure that accompanies a careful life.

But as www.USAjudges.com demonstrates, some refuse to recuse themselves. Berry pointed out a good judge will recuse his or herself. Sadly, this country has had precious few recusals.

Ergo, this ruling was a long time coming.

Chief's Roberts comments were, well, just plain silly. Not to mention, out of touch.
Chief Roberts is a charming man, but please. The reality is some judges work to set aside personal feelings, and some, don't. As the public is aware of this, so should, with all due respect, Chief Justice
Roberts.

Posted by: info12 | June 9, 2009 12:26 PM

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