Brent Benjamin was elected to serve as a Justice on the West Virginia Supreme Court in November 2004, winning 53.3 percent of the vote as the Republican nominee. He had some generous supporters: Don Blankenship, chairman, CEO and president of A.T. Massey Coal Co., spent $3 million to aid Benjamin's campaign -- a $1,000 direct contribution, plus $516,000 in payments to media outlets for television and newspaper advertisement in opposition to the Democratic incumbent, and -- oh, yeah -- nearly $2.5 million to a 527 organization called "And for the Sake of Kids" set up to attack Benjamin's opponent. Altogether, Blankenship's spending accounted for more than 60 percent of the nearly $5 million spent to promote Benjamin's election.
This may not have been out of the goodness of his heart -- the Massey company was preparing to appeal to the state Supreme Court a $50 million verdict against it in a lawsuit over supplying coal to a steel company. Upon Benjamin's election, the case was indeed appealed to the WV Supreme Court, and despite a motion for him to do so he did not recuse himself from consideration of the case. In November 2007, Justice Benjamin formed part of a 3-2 majority which reversed the $50 million verdict in Caperton's favor against Massey.
[It gets messier: Massey's opponent Caperton sought rehearing, and the parties moved for disqualification of three of the five justices who decided the appeal -- photos had surfaced of Justice Maynard vacationing with Blankenship in the French Riviera while the case was pending. Justice Starcher recused himself because of public criticism he had made of Blankenship's role in the 2004 elections, and urged Benjamin to do the same, noting that "Blankenship’s bestowal of his personal wealth, political tactics, and ‘friendship’ have created a cancer in the affairs of this Court." Justice Benjamin declined Justice Starcher’s suggestion to excise the cancer and denied Caperton’s recusal motion. As acting Chief Justice, he selected two lower court judges to fill the two slots now vacant for this case, and again Massey prevailed 3-2.]
Which leads us to today, because the parties which lost in West Virginia argued that it violated their federal constitutional right to due process to have this case heard by a judge whose impartiality was so dubious. In a 5-4 decision authored by Justice Kennedy, the Supreme Court of the United States agreed.
Writing on behalf of himself and Justices Stevens, Souter, Ginsberg and Breyer, Justice Kennedy explains:
Caperton contends that Blankenship’s pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias. Though not a bribe or criminal influence, Justice Benjamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected. That temptation, Caperton claims, is as strong and inherent in human nature... 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. We conclude that 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 by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin’s campaign committee.
The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. The $50 million adverse jury verdict had been entered before the election, and the Supreme Court of Appeals was the next step once the state trial court dealt with post-trial motions. So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor’s company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. 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. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.
The Court concludes with some thoughts on the extreme nature of this case, which they believe limits the reach of its precedent here:
Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here -- ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.
It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards.
To which the Chief Justice, writing on behalf of himself and Justices Scalia, Thomas and Alito, says, umm, we need some standards:
Today, however, the Court enlists the Due Process Clause to overturn a judge’s failure to recuse because of a "probability of bias." Unlike the established grounds for disqualification, a "probability of bias" cannot be defined in any limited way. The Court’s new "rule" provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case....
In any given case, there are a number of factors that could give rise to a "probability" or "appearance" of bias: friendship with a party or lawyer, prior employment experience, membership in clubs or associations, prior speeches and writings, religious affiliation, and countless other considerations. We have never held that the Due Process Clause requires recusal for any of these reasons, even though they could be viewed as presenting a "probability of bias." Many state statutes require recusal based on a probability or appearance of bias, but "that alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause." States are, of course, free to adopt broader recusal rules than the Constitution requires -- and every State has -- but these developments are not continuously incorporated into the Due Process Clause.
But the standard the majority articulates -- "probability of bias" -- fails to provide clear, workable guidance for future cases. At the most basic level, it is unclear whether the new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.
But there are other fundamental questions as well. With little help from the majority, courts will now have to determine:
- How much money is too much money? What level of contribution or expenditure gives rise to a "probability of bias"?
- How do we determine whether a given expenditure is "disproportionate"? Disproportionate to what?
- Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? What about contributions to independent outside groups supporting a candidate?
[...]
[...]
- Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?
- What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation?
These are only a few uncertainties that quickly come to mind.
Moreover, claim the dissenters, hard cases do make bad law:
To its credit, the Court seems to recognize that the inherently boundless nature of its new rule poses a problem. But the majority’s only answer is that the present case is an "extreme" one, so there is no need to worry about other cases. Ante, at 17. The Court repeats this point over and over. See ante, at 13 ("this is an exceptional case"); ante, at16 ("On these extreme facts"); ibid. ("Our decision today addresses an extraordinary situation"); ante, at 17 ("The facts now before us are extreme by any measure"); ante, at 20 (Court’s rule will "be confined to rare instances").
But this is just so much whistling past the graveyard. Claims that have little chance of success are nonetheless frequently filed. The success rate for certiorari petitions before this Court is approximately 1.1%, and yet the previous Term some 8,241 were filed. Every one of the "Caperton motions" or appeals or §1983 actions will claim that the judge is biased, or probably biased, bringing the judge and the judicial system into disrepute. And all future litigants will assert that their case is really the most extreme thus far.
Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: "Hard cases make bad law."
And finally, they claim, Blankenship's money may not have mattered:
[W]hy is the Court so convinced that this is an extreme case? It is true that Don Blankenship spent a large amount of money in connection with this election. But this point cannot be emphasized strongly enough: Other than a $1,000 direct contribution from Blankenship, Justice Benjamin and his campaign had no control over how this money was spent. Campaigns go to great lengths to develop precise messages and strategies. An insensitive or ham-handed ad campaign by an independent third party might distort the campaign’s message or cause a backlash against the candidate, even though the candidate was not responsible for the ads. ...
It is also far from clear that Blankenship’s expenditures affected the outcome of this election. Justice Benjamin won by a comfortable 7-point margin (53.3% to 46.7%). Many observers believed that Justice Benjamin’s opponent doomed his candidacy by giving a well-publicized speech that made several curious allegations; this speech was described in the local media as "deeply disturbing" and worse. Justice Benjamin’s opponent also refused to give interviews or participate in debates. All but one of the major West Virginia newspapers endorsed Justice Benjamin. Justice Benjamin just might have won because the voters of West Virginia thought he would be a better judge than his opponent. Unlike the majority, I cannot say with any degree of certainty that Blankenship "cho[se] the judge in his own cause." I would give the voters of West Virginia more credit than that.
Finally, Justice Scalia has a brief separate dissent, the bulk of which is as follows:
What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. The Court’s opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated -- and likewise the law governing it, which will be indeterminate for years to come, if not forever. Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means.
A Talmudic maxim instructs with respect to the Scripture: "Turn it over, and turn it over, for all is therein." The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed -- which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.
[Is it? As per previous disclaimers, I'm involved in a matter currently pending in the cert pool; as such, any reporting I'm doing on the Court will be descriptive and not argumentative. You'll have to draw your own conclusions as to which side ought to have prevailed.]
[HT to Seneca Doane on suggesting the title; his diary is itself and also links to other worthy discussions of this topic on the site.]