High Court Weighs Judicial Ethics

The Supreme Court heard arguments Tuesday in a West Virginia case in which a state supreme court justice participated in a lawsuit involving one of his major campaign contributors. The Supreme Court will consider whether judges must recuse themselves from cases in which they might be seen to have a bias, even when they have no personal stake in the outcome.

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The Supreme Court heard a major case today about judges who are elected to the bench. The question is whether those judges must step aside from cases involving their campaign donors because of possible bias. There are huge ramifications for the judiciary, 39 states elect some or all their judges. And in recent years the cost of judicial campaigns has risen so much that judges have been dialing for dollars just like other candidates.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Hugh Caperton contends his small mining company in West Virginia was run out of business by Massey Coal, the nation's fourth largest coal company and its CEO. A West Virginia jury agreed and ordered Caperton $50 million. Massey's appeal was headed to the state supreme court when the company's president and CEO spent three million dollars to unseat an incumbent justice and replace him with a little known West Virginia lawyer named Brent Benjamin.

When Benjamin won, he three times refused requests that he disqualify himself from ruling on the case. Today, on the steps of the U.S. Supreme Court, Hugh Caperton recalled how he felt back then.

Mr. HUGH CAPERTON (Mining Company Owner, West Virginia): Well, you know, I obviously was wondering how it was going to be a fair trial when I saw a judge that had received three million dollars.

TOTENBERG: As it turned out, the new justice cast the deciding vote to overturn the $50 million judgment. And Caperton appealed to the U.S. Supreme Court, contending that he was denied his constitutional right to a fair hearing before an impartial tribunal. The importance of the case was underlined today by the presence of retired Justice Sandra Day O'Connor sitting in the gallery. Since she left the court, she's been on a one-woman crusade to prevent what she sees as attempts to erode the independence of the judiciary.

As today's argument unfolded, the justices appeared to be closely divided with Justice Anthony Kennedy, perhaps the pivotal vote leaning towards forcing refusal. The conservative justices didn't seem to buy lawyer Ted Olson's argument that, in this case, since Massey's CEO spent more to elect Benjamin than all the rest of his donors combined, there was a probability Benjamin was biased.

Chief Justice Roberts - probability is a loose term. What percentage is probable? 50 percent, 10 percent? Lawyer Olson said there's no bright line that just as the court determines what's a reasonable search or a speedy trial, it also can determine when there is a probability of bias. Justice Scalia - I was appointed to the bench by Ronald Reagan.

Should I be any less grateful to Ronald Reagan than the judge here was grateful to the person who spent a lot of money to elect him? Answer: There's a significant difference. The framers of the Constitution gave the members of this court and the Federal Judiciary life tenure for the very purpose of ensuring judicial independence. And there's another difference, said Olson, Supreme Court justices, when recused cannot be replaced, but Supreme Court justices in West Virginia can and are routinely replaced when a justice is disqualified.

Justice Kennedy pointed to the importance of this case. All of us know that the law could change drastically in states all across the country. Your standard is recusal if there's an unacceptable risk of bias, but it doesn't seem to me that's specific enough. Lawyer Olson cited a brief by the Conference of State Chief Justices, endorsing the idea that the Constitution requires disqualification when there's a probability of bias and pointing to criteria such as the size, nature, timing, and effectiveness of the campaign support.

Justice Souter wondered whether the court should stay its hand and wait and see if the political process is dealing with this problem. Answer: The political process is spiraling out of control with the financial arms race posing the appearance that justice is being bought. Arguing the opposite position on behalf of Massey Coal, Lawyer Andrew Fry contended there's no way to limit a constitutional rule forcing judges to disqualify themselves.

Justice Ginsberg - are you saying that judges like legislators are elected and always beholden to interest groups? Justice Stevens - is it your position that the appearance of impropriety could never be strong enough to raise a constitutional issue? Answer: Yes. Justice Stevens - no matter how extreme the facts, we've never had a case this extreme before. Fry stuck to his guns.

Justice Kennedy - it does seem to me that disqualifying a judge, if there's an appearance of a conflict, has much to recommend it. Answer: Appearance addresses the reputation of the judicial system, which is not the function of the Constitution. Justice Stephens - why not? You don't think the community's confidence in the way judges behave is an important part of due process of law?

Justice Kennedy - our whole system is designed to ensure confidence in our judgments. Answer: Judges traditionally have a presumption of impartiality. Justice Ginsberg - this isn't an abstract situation. We have a setting of election of judges and millions of dollars spent on them. Answer: Then what would you do about plaintiff's lawyers, who gave a total of $1.5 million to Benjamin's opponent?

Justice Briar pointed to the huge size of the contribution here, given by a single individual and the fact that a case involving that individual's company was coming up. Call it probability of bias, call it appearance of impropriety, he said, use the language you want, but put them together and they spell mother.

Nina Totenberg, NPR News, Washington.

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