published Wednesday, June 10th, 2009

Keeping judges honest

Few rights in this nation are as important as the due process of law. The impartiality of judges and their avoidance of even the appearance of a conflict of interest lie at the heart of due process. Thankfully, the U.S. Supreme Court proved willing Monday to step into a judicial fray to affirm that fundamental right and judges’ role in protecting it.

The case that provoked the Supreme Court’s action is especially noteworthy. It focuses on the nexus between big money donors to judges’ election campaigns, and the decisions of those judges on cases involving their donors and supporters. That core issue has been in play in Tennessee recently as the Legislature debated abolishing the state’s judicial appointment system in favor of open elections for appellate court judges. Lawmakers finally decided, wisely, to revise the current judicial retention system rather than let it expire.

The U.S. Supreme Court’s key decision Monday arose on the complaint of several small West Viriginia mining companies that had won a $50 million jury award against Massey Energy, one of the nation’s largest coal companies, on the grounds that they had been fraudulently run out of business by Massey’s owner, Don L. Blankenship. The verdict was later overturned by the West Virginia Supreme Court — not once, but twice — on a 3-2 vote decided by the chief justice whose vote was tainted by his apparent campaign link with Mr. Blankenship.

The small companies claimed that West Virginia Supreme Court Chief Justice Brent D. Benjamin should have recused himself from the case because Massey’s owner spent about $3 million on an advertising campaign to help elect Justice Benjamin over the then-incumbent Justice Warren R. McGraw while Massey’s appeal of the $50 million verdict was pending.

Mr. Blankenship’s massive campaign spending amounted to “more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee,” U.S. Supreme Court Justice Anthony Kennedy noted in his 5-4 majority opinion, which held that Mr. Benjamin should have recused himself from the case.

Justice Kennedy rightly ruled that it didn’t matter whether Mr. Blankenship’s big spending in behalf of Justice Benjamin’s campaign actually influenced the judge’s vote. “Whether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry,” he wrote. Rather, he said there was “a serious, objective risk of actual bias” because Mr. Blankenship’s spending made the case was so “extraordinary” and “extreme.”

In fact, the appearance of a gross conflict of interest seems irrefutable. But the court split. Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens and Stephen G. Breyer embraced Justice Kennedy’s opinion. Ideological conservatives, Justices Antonin Scalia, Samuel Alito and Clarence Thomas, signed onto Chief Justice John Roberts’ view that the legal cure — a ruling that sets a standard and precedent “in a manner ungoverned by any discernible rule” — “is worse than the disease.” The majority opinion, he wrote, may invite continuing legal battles over alleged conflicts of interest.

In an era in which spending on judges’ elections has soared into the millions — a $10 million campaign for a state’s supreme court justice election is not unknown — the minority opinion seems dogmatically hitched to a blind ideology that would bleed the courts of integrity and public confidence in their impartiality.

Big judicial campaigns typically involve big money donations by donors, special interest groups and lawyers that have particular interests in cases before the courts. Such money should not influence judges’ decisions. Judicial standards for decades — Tennessee’s included — have held that judges should avoid not just real improprieties, but the appearance of conflicts of interest to honor the public trust.

It should not require an empirical formula to fix a specific standard for a subjective position. The high court traveled a long time on the basis of Justice Potter Stewart’s 1964 opinion about pornography. He didn’t require a specific definition. “I’ll know it when I see it,” he wrote.

Judges should be under a legal burden to respect their ethical appearance. Knowing that the burden now falls on judges to recuse themselves when their ethical appearance is at stake should make for fewer lawsuits against them, not more. It certainly should make for more integrity on the bench.

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rolando said...

Woefully, that same US Supreme Court backed away from the case of Executive Branch direct interference and undue influence in civil law in the Chrysler bankruptcy.

Coercion was used to improperly force holders of secured bonds to accept one-quarter of their due. The Court chose to allow that abuse of power...a sad commentary on our country.

June 10, 2009 at 8:18 a.m.
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