High Court Tackles Campaign Financing

For years, the Supreme Court has refused to be drawn into the controversy over whether campaign contributions to judicial candidates create a conflict of interest. But Friday, amid growing concern over the role of money in state court elections, the justices agreed to review a case testing whether elected judges can participate in cases involving large campaign contributors.

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The U.S. Supreme Court is stepping into the tricky question of judicial ethics in state courts. For years, the court has refused to be drawn into the controversy over whether campaign contributions to judicial candidates create a conflict of interest. But yesterday, amid growing concern over the role of money in state court elections, the justices agreed to review a case testing whether elected judges can participate in cases involving large campaign contributors. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Thirty-nine states choose either all or some of their judges by election. But unlike federal judges, who must disqualify themselves from any case in which they have even an iota of personal or financial interest, the states have no criteria for disqualifying judges, and in most places, the judges decide on their own whether to recuse themselves.

The case the high court has agreed to hear comes from West Virginia, where a state Supreme Court justice named Brent Benjamin won his seat with the help of the CEO of the Massey Coal Company. The CEO contributed $3 million to Benjamin's campaign and raised at least a half million more. In short, one man, a coal company executive, personally contributed 60 percent of Benjamin's campaign war chest.

At the time, the coal company had been successfully sued for fraud by its competitors and ordered to pay $50 million in damages. And after the election, Massey Coal appealed that verdict to the state Supreme Court where Justice Benjamin twice refused to disqualify himself and twice cast the deciding vote to set aside the multi-million-dollar judgment.

In a statement posted on the state court's web site this July, the judge said he had not recused himself because he had no, quote, "personal, substantial or pecuniary interest in the outcome of the Massey case." Now, the U.S. Supreme Court has agreed to decide whether the losing party in the case was denied a fair hearing by a neutral decision-maker.

In appealing to the Supreme Court, Massey's competitors, represented by former Solicitor General Ted Olson, were backed by an unusual coalition of groups from the left, right and center.

Mr. TED OLSON (Former Solicitor General): You will accept a result that is adverse to you. You might not like it, but you will accept it if you believe that the process is fair and even-handed. If people perceive that justice is for sale or perceive that justice is - judges will have a hard time being fair, then our system begins to crumble.

TOTENBERG: For decades, the Supreme Court has determinately stayed out of the question of campaign contributions as conflicts of interest. But in recent years, the ever-increasing amount of money pouring into judicial campaigns has alarmed interest groups of all political persuasions. This year, state Supreme Court election campaigns alone spent $32 million. And that does not even count the hundreds, perhaps thousands of other state judicial elections.

What's more, no state has established criteria to tell judges when they should recuse themselves. The American Bar Association has proposed a model code that would require recusal from any case in which a lawyer or a litigant contributed more than a set amount to a judge. Even though the code leaves blank the amount, to be filled in by each state, no state has yet adopted it. Reform advocates are pinning their hopes on the Supreme Court, hoping it will tell judges they have to establish and abide by disqualification rules for campaign contributors. Nina Totenberg, NPR News, Washington.

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