Supreme Court justices considering new judge standards

WASHINGTON -- Supreme Court justices expressed concern Tuesday about people's confidence in the impartiality of elected state judges and suggested they might set a new standard for when judges should take themselves out of cases that involve big financial supporters.

"The system … is not working well," Justice David Souter said, referring to the dramatic rise in campaign contributions for state elections and public concern about whether money is tainting judges' rulings in some cases.

The dispute heard centers on a coal company CEO who contributed $3 million to help elect a West Virginia supreme court justice. That justice later cast a crucial vote that overturned a $50 million jury verdict in a fraud lawsuit against the coal company.

Tuesday's oral arguments drew a packed courtroom. Among those in the white marble setting was retired Justice Sandra Day O'Connor, who often speaks publicly about judicial independence and has used the West Virginia case as an example of possible bias.

The amount of money Massey Coal CEO Don Blankenship spent on the 2004 judicial race, 60% of all contributions, and the fact that Massey's case against coal company rival Hugh Caperton was pending at the time, plainly captured the justices' attention.

Many seemed skeptical of the decision by the newly elected judge, Brent Benjamin, not to take himself out of the case as Caperton sought.

Justice John Paul Stevens termed the situation "extreme" and at one point suggested "obviously improper."

Justice Anthony Kennedy, who is typically the deciding vote when the court is ideologically split, as it appeared Tuesday, suggested by his questions that he was open to some new, yet limiting, standard for when judges might have to disqualify themselves.

Kennedy observed at one point that litigants have a right to believe their judges are impartial.

The key question for the justices in the long-simmering West Virginia dispute is whether a judge's failure to disqualify himself from a case involving his principal financial supporter violates constitutional due process of law.

Lawyer Theodore Olson, representing Caperton, whose company went bankrupt after dealing with Massey, says CEO Blankenship's support for Benjamin created an objective probability that he was biased in favor of Massey. Olson referred to "the appearance of justice being bought."

Throughout the arguments, Olson cited growing national concerns about impartial state courts. He noted that the Conference of Chief Justices, the national organization of top state judges, has asked the Supreme Court to set new standards for when judges should disqualify from a dispute.

"There is a financial arms race in judicial elections," Olson said.

Representing Massey, lawyer Andrew Frey countered that the Supreme Court should leave the controversy to state courts and legislatures.

"This is a situation in which the states are dealing with it," he said.

Thirty-nine states elect at least some of their judges.

Frey insisted that the standard of Olson, a former U.S. solicitor general, was improperly open-ended. Frey said there was no basis in the court's past cases that any "probability of bias" or standard tied to appearances mandates disqualification.

He also tried to bat away any concerns that West Virginia Justice Benjamin would have felt beholden to Blankenship.

Chief Justice John Roberts and Justice Antonin Scalia were most outspokenly sympathetic to that view. They also vigorously challenged Olson.

"Probability is a loose term," Roberts asserted. He suggested Olson's standard was unconstitutionally vague.

He presented numerous scenarios of trade groups making campaign contributions and raised dilemmas of whether a judge would have to sit out any case involving those groups.

"When do you decide that there's a probability of bias," Roberts asked, later questioning whether anyone who received a large contribution from the United Mine Workers would have to recuse in every labor case.

Scalia asked why, under Olson's view, he would not have had to disqualify from cases involving the president who appointed him, Ronald Reagan.

Olson said there was a difference between a life-tenured appointment and the situation when a benefactor has contributed millions to help elect an individual who would have an opportunity to rule on his case.

While Kennedy seemed open to Olson's arguments, he stressed that he needed "specifics" and greater "guidance" for how a standard would be written.

The question before the justices, regarding when disqualification is required because of campaign contributions, is a new one. Even in other contexts, the justices have rarely reviewed disputes over when a judge should sit out a case.

A 1927 ruling established the basic rule that trials should be conducted by an impartial judge. The justices had said people should have confidence in the impartiality of judges, yet they have also warned that individual judges should not be vulnerable to frivolous requests for disqualification and manipulation to get them off a case.

State judicial codes vary on standards for recusal, although most, like West Virginia, leave it to the discretion of the judge.

Tuesday's case began in 1997 when Massey Coal canceled a contract Caperton's Harman Mining Co. had to supply a plant in Pennsylvania. Caperton sued, alleging fraud, unlawful interference with his business dealings, and other grievances.

A Boone County, W.Va., jury sided with Caperton and Harman, and awarded a total $50 million in compensatory and punitive damages.

As the case was on its way up to the West Virginia Supreme Court, Massey chairman and CEO Blankenship contributed $3 million to unseat one of its judges — 60% the total spent on the race. New judge Benjamin then cast a vote to overturn the verdict that had favored Caperton.

Explaining why he did not bow out of Caperton v. Massey, Benjamin said the Blankenship money was outside of his control. Benjamin emphasized that the hearing on the case was nearly three years after his election to the 12-year state court term.

"I have no personal involvement with nor harbor any personal antipathy toward any party or counsel" involved, he wrote, and he contended "federal courts have consistently rejected the contention that appearance-driven conflicts, without more, raise due process implications."

The case has brought new attention to the rise in campaign money in judicial elections.

The New York-based non-partisan Brennan Center for Justice, siding with Caperton in the case, says from 2000 to 2007, $168 million was spent on contested elections for states' highest courts, up from $87 million from 1990 to 1999.