Judicial Elections and Disqualification

This week, the US Supreme Court issued a major decision in Caperton v. Massey, setting a new standard for ruling on motions for the recusal or disqualification of a judge from a pending case, particularly when a judge may have benefited from campaign contributions from one of the parties. The facts in the case, according to a Wall Street Journal article titled Justices Set New Standard for Recusals, read like a John Grisham novel. The parties were the plaintiff, Hugh Caperton and his small, independent Harman Mining Co. and the defendant, Massey Energy, the country’s fourth largest coal company, and its CEO, Don Blankenship. At trial before a West Virginia jury, Massey lost a $50 million verdict in a fraud lawsuit brought by Caperton which Massey then appealed to the West Virginia Supreme Court. As the case moved through the appeals process, Blankenship contributed $3 million to Charleston lawyer Brent Benjamin’s election campaign against the incumbent Supreme Court Judge Warren McGraw. This amounted to 60 percent of Benjamin campaign contributions. Benjamin won the election. Three years later, when Massey’s appeal reached the West Virginia Supreme Court, Benjamin cast a crucial vote overturning the $50 million verdict. After repeated denials of motions that Judge Benjamin recuse himself, the case came to the Supreme Court where for the first time it set a standard for disqualifications arising from the money that judges receive in their campaigns for election to the bench. In a fact-driven decision, the Justice Kennedy, writing for the majority, reasoned that, as an objective matter, the Due Process Clause requires recusal by a judge where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutional.” The dissent by Chief Justice Roberts lamented that the majority "the standard the majority articulates—"probability of bias"—fails to provide clear, workable guidance for future cases".

Aside from the question of how judicial bias is measured, Caperton spotlights the larger question of whether choosing judges by popular vote is sound policy. In recent times, judicial elections have become high profile, big money political events much different from the quiet, low key affairs of earlier times. Choosing judges by popular vote on its face seems like an exercise in democracy but in practice judicial elections call out for reforms to rein in out-of-control judicial campaigns and to prevent litigants from buying judges through campaign contributions to cast votes in their favor. Imagine filling the current US Supreme Court vacancy by judicial election rather than appointment and Senate confirmation.

The BLS Library has in its collection some worthwhile material on the subject of disqualification of judges including an electronic resource entitled Fair Courts: Setting Recusal Standards by James Sample, et al., Call #KF8861 .S26 2008 (INTERNET) published by the Brennan Center for Justice at New York University School of Law, the legal team that represented the plaintiff in Caperton v.Massey. See also Judicial Disqualification: Recusal and Disqualification of Judges by Richard E. Flamm (Call # KF8861 .F53 2007).