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Preview: Judges, Politics and the Constitution

The Supreme Court will hear oral argument on Caperton, et al., v. A.T. Massey Coal Co., et al. (08-322) at 10 a.m. on Tuesday.  Theodore B. Olson of Gibson, Dunn & Crutcher in Washington will argue for Hugh Caperton and the Harman group of companies.  Andrew L. Frey of Mayer Brown in New York will argue for the Massey company.


Amid reports of a recent “explosion” in campaign spending on state elections for judges, the Supreme Court explores how far the Constitution goes to set controls on judges who have taken hefty donations. The issue of when due process requires disqualification of such a judge is at the heart of the case of Caperton, et al., v. A.T. Massey Coal Co., et al.


Across the nation, three-fourths of the states — 38 — choose judges for their state courts by popular election, either in the first round, or in a retention election for a sitting judge.  The Supreme Court is not now second-guessing that approach, although a rising chorus of reform advocacy groups questions whether the system has gone awry because of the potential influence of donations to cover the ever-climbing cost of judicial elections.  The particular object of concern are contributions from lawyers and parties who have cases before state courts.  Contributions from such sources, former Justice Sandra Day O’Connor has written, “threaten the integrity of judicial selection and compromise the public perception of judicial decisions.”

Figures supplied to the Court by reform groups seek to tell the story. Judicial elections began growing more expensive in the late 1990s, and, since then, the total money raised has ballooned, as illustrated by data that funds raised by candidates for seats on states supreme courts in the years 2000-2007 drawfed the total for the entire decade of the 1990s — $168 million compared to $86 million.  And further data show that, most of the time, the judicial candidate who raises the most money wins the election.

The Constitution does not put any ceilings on the money that anyone can give to a state judicial candidate. But, for a long time, the Constitution’s promise of “due process” has been understood to require a judge to step aside from a case in which his or her impartiality is open to significant question.  The Court, however, has never spelled out exactly when a refusal to “recuse” violates due process.

Some constitutional debate continues to go on over whether disqualification is required when there is an “appearance” of bias, or is required only when there is proof of “actual” bias.  It does appear that, at least when a judge has a direct personal or financial stake in the outcome of a case, the Constitution is clear: he or she cannot sit on that case — even if there is no proof that the judge would actually vote to protect that interest. That is a mandate that traces back to English common law.

But the more difficult issue is how to judge whether a particular influence will cause a judge to be biased, or at least to appear to be biased, thus forcing disqualification.  In modern terms, legislatures have been passing laws to deal with perceptions, or demonstrations, of bias.   The question now, then, is whether the Constitution, too, imposes some variation of a bias standard for judicial disqualification.

The lower courts, it has been argued, are split on the bias question.  A number of those courts have held that due process prohibits both actual bias and the appearance of bias on the part of a judge.  But others have said that disqualification is required only when there is actual bias.  And still others have held that due process does not invariably required recusal of a judge for an appearance of bias; those courts suggest that circumstances may show “a presumption” or “a reasonable probability” of bias.

That three-way division, apparently, is what has now persuaded the Supreme Court to step in to examine just what due process does require. In the new case, a justice of the West Virginia Supreme Court of Appeals (now its chief justice) refused to step aside when challenged over campaign donations; he  concluded there was no proof of “actual” bias.  That, he argued, was the constitutional due process standard.

When now-Chief Justice Brent D. Benjamin (a former Charleston lawyer) first ran for a seat. with a 12-year term, on the West Virginia tribunal in November 2004, he won with 53.3 percent of the vote in a particularly nasty campaign.  During that campaign, Don L. Blankenship, chairman, CEO and president of A.T. Massey Coal Co., spent $3 million that directly or indirectly supported Benjamin’s Republican candidacy against an incumbent Democrat.  That included $1,000 donated directly to Benjamin’s campaign, some $516,000 in payments to media outlets for television and newspaper advertisements in opposition to the incumbent, and nearly $2.5 million to a group called “And for the Sake of Kids,” set up to oppose Benjamin’s opponent. Altogether, Blankenship’s spending accounted for more than 60 percent of the nearly $5 million spent to promote Benjamin’s election.

West Virginia news organizations paid much attention to the campaign, with some noting that the Massey company was preparing to appeal to the state Supreme Court a $50 million verdict against that company in a lawsuit over supplying coal to a steel company.  The winner of that verdict was the Harman Mining Corp., a competitor of Massey on those coal sales.  The Harman group was formed by a Beckley, W.Va., businessman, Hugh M. Caperton.

Justice Benjamin joined the state Supreme Court in January 2005, and the Harman group, then in bankruptcy, moved to have Benjamin step aside when the Massey appeal reached the court.  Benjamin refused, and the state court, by a 3-2 vote (with Benjamin in the majority), overturned the verdict.  Two other recusal motions also failed, and the state court on rehearing, again by a 3-2 vote, reversed the verdict against Massey.  (In July 2008, Justice Benjamin issued a lengthy opinion explaining his refusal to step aside.  After the U.S. Supreme Court agreed to review the case, Chief Justice Benjamin decided to disqualify himself from any cases in which the Massey firm was involved, saying failing to do so would be disrespectful of the Suprerome Court.)

Petition for Certiorari

Last July, businessman Caperton and his Harman group of companies took the case to the Supreme Court, presenting the question “whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.”  The challenge was aimed, of course, at Justice Benjamin, but technically is a test of the state court’s ruling on rehearing on April 3 of last year.

The petition treated the case as an “exceptional” one, citing “the extraordinary amount of money that Mr. Blankenship spent on Justice Benjamin’s campaign, the timing of those expenditures (which were made after the entry of a multimillion-dollar judgment against Massey), and Mr. Blankenship’s efforts to solicit campaign contributions from other donors on behalf of the Benjamin campaign.  This case therefore presents the ideal opportunity for this Court to provide the lower courts with guidance regarding the factors that courts should weigh when determining whether due process requires reversal.”

Caperton’s petition, making clear it is not intended to be an assault on judicial elections as a general matter, said that mode is well-established.  But it added that “there will be rare cases where campaign expenditures by a litigant create a constitutionally acceptable appearance of impropriety.”  Much of the petition focused on an “appearance” standard, citing, for example, a 1968 Supreme Court decision (Commonwealth Coatings Corp. v. Continental Casualty Co.) saying that a judge “must avoid the appearance of bias,” with the italics added.  That emphasis appeared to be an attempt to draw a vivid contrast with Justice Benjamin’s view that recusal is required only when actual bias has been shown.

The petition had the support of the American Bar Association, the Committee for Economic Development, Public Citizen, a group of appellate lawyers, and various government reform groups.

The Massey company, in response, sided with Justice Benjamin’s reliance on an “actual bias” standard for due process, remarking that the Supreme Court “has never adopted a ‘looks bad’ due process test.”  It contended that the Caperton appeal ignored the presumption of honesty and integrity among judges, and argued that most judicial disqualification disputes do not involve constitutional issues because the Due Process Clause sets only a floor, not a uniform, standard.i

The company contended that there was no proof that Benjamin had an actual bias. “Neither this Court nor any other court has ever held that a popularly elected judge must recuse himself when an individual, who is neither a party nor an attorney appearing before the judge inpending litigation, makes campaign expenditures independent from and outside the control of the judge’s campaign.”

There is no actual split among lower courts on the issue, the company asserted.  It also contended that the Caperton plea did not offer the Court a workable standard on how to judge when campaign donations rose too high in a judicial election.  And it argued that the states could handle any emerging problems over campaign finance in judicial politics, saying the Justices should not step in to wield “the blunt instrument of a federal due process ruling.”

The Supreme Court agreed on Nov. 14 to hear the case, and later scheduled it to be heard on March 3.

Merits Briefs

A lively debate broke out in the merits briefs, over whether the Court should simply dismiss the case as one that never should have been accepted for review.  That was an argument by the Massey company, based on its claim that the Caperton group had switched position in its merits brief, putting forward a “probability of bias” due process standard in place of its earlier assertion of an “appearance of bias” standard.  “Petitioners should not be permitted to induce the Court to grant certiorari on one theory, only to ask it to adopt a different theory after review has been granted.  The writ should be dismissed as improvidently granted.”

The Caperton reply brief responded, quoting passages from its petition mentioning a probabiliity approach. “Petitioner’s arguments have remained consistent throughout,” the brief said.  One of those passages had linked the “appearance of bias test” with the “probability” standard, saying an appearance may be serious enough to create a probability of actual bias.

The Caperton brief, in discussing the merits, discussed an “objective probability that [Justice Benjamin was biased in favor of Massey and against petitioners.”  There must be an objective standard for due process purposes, it contended, “because, in most cases, it is extraordinarily difficult to prove that a judge harbors a subjective bias against a litigant. Judges are highly unlikely to acknowledge that they are biased, and discovery is almost always unavailable to substantiate the existence of judicial bias.”

To try to dispel any suggestion that its challenge was seeking to cut off donations to campaigning judges by those who have cases before the court involved, the brief argued that “it is not the case that recusal is constitutionally required whenever a judge receives campaign support from a litigant or attorney — especially where that support represents only a small fraction of the total support of the judge’s campaign.”

It then listed reasons why the Caperton group feared that the campaign support from Mr. Blankenship generated “a coonstitutionally unacceptable probability” of bias.

The Massey company, aside from seeking to have the case dismissed, used its merits brief to argue that the state Supreme Court decision in its favor should be upheld whatever standard of “bias” the Justices might apply.  It contended that the only time the Court has found that the Constitution recused a judge’s recusal was “when — unlike here — the judge had a pecuniary interest in the outcome of the case, or in certain situations arising in contempt proceedings, where special rules apply.”

Ultimately, the opposing brief asserted, Justice Benjamin was entitled to the presumption that he had acted impartially, and the Caperton challenge had not succeeded in overcoming that factor in his favor.

There is a considerable imbalance in amici support in the case.  The Caperton appeal is supported by (in addition to those favoring it at the petition stage) a broad array of good-government groups, defense lawyers, the Conference of Chief Justices of state courts as well as former state court justices, and groups of “political accountability” and business ethics — ten amici briefs.  By contrast, the Massey company has the support of half that number.  Its amici include a separate group of former justices of state courts, conservative law professors, two advocacy groups that are active in campaign finance litigation (the James Madison Center and the Center for Competitive Politics), and seven states warning the Court against fashioning “an entirely new body of federal government law to govern day-to-day recusal practices in state courts.”


The Supreme Court may well be torn, in deciding this case, between concern for the independence of the states and worry over the independence of the judiciary.  There are strong federalism overtones to the case, with states preferring to keep control over their own courts rather than have them subjected to some type of ongoing federal constitutional superintendence.  But there are also overtones of concern in the case about the influence of big money in American elections — and, especially, sizeable donations by lawyers and litigants to judges before whom they may appear (perhaps an ethical issue as much as it is one of constitutional dimension).

Within the court, there is a solid bloc, perhaps now making up a continuing majority, that is not keen on using the Constitution to police election campaign contributions and spending, and that same bloc is likely — for reasons that are conservative in nature — to be concerned about states’ rights.  But there also is a bloc of Justices that remains troubled about the potentially corrupting role of raising money for ever-more-expensive political campaigns, for judges or others.  There thus will be strong prospects for a major disagreement within the Court as it moves this case along.

On the merits of the Benjamin recusal issue, it could well be that some Justices will see the case as a blatant attempt to “buy” a judge, perhaps leading them to seek some kind of constitutional check.   The facts are quite stark in that respect.  No one on the Court wants to give the impression that judges can be purchased, and the case does carry that risk.   Retired Justice O’Connor’s high-visibility campaign to protect judicial independence could well be a background factor at work.