This morning the Supreme Court hears oral argument in Caperton v. A.T. Massey Coal Co., a Due Process challenge to a West Virginia Supreme Court justice's refusal to step aside in a case where the defendant's CEO had supported his election to the court. With Justice Brent Benjamin's deciding vote, the court voted 3-2 to reverse a $50 million verdict against the defendant, Massey Coal.
Read the facts of this case, and you'll see it's anything but a straightforward tale of corruption. Massey chief Don Blankenship did spend a pile of money in the campaign, but it was independent spending, uncoordinated with Benjamin's campaign. Blankenship says his aim was to unseat Benjamin's opponent and predecessor on the court, Warren McGraw.
Moreover, court records show that Benjamin has voted against Massey's financial interests nearly every time the company has come before his court. Not counting the present case, Benjamin voted against Massey 15 times, and for it only twice. Several of those cases were worth far more than Caperton.
Finally, it's worth pointing out there's no direct evidence of any quid pro quo, just insinuations of impropriety. The best that Caperton's merits brief can muster is the lame assertion that, after Benjamin's election, "some in West Virgina wondered aloud whether Massey had 'bought itself a judge.'"
Thus, the odd question presented to the Supreme Court: Whether a judge's mere appearance of impropriety, something usually left to state ethics rules and political processes, somehow violates the Due Process Clause of the Fourteenth Amendment.
The way the Court answers that question could go a long way toward ending judicial elections in the states--a long-time goal of "reformers" who favor undemocratic selection committees dominated by ABA and trial-bar apparatchiks. Could there be any other end when any sizable campaign donation--perhaps just a few thousand--guarantees recusal? (A cheap investment for some litigants, quips a colleague.)
Be wary of the constitutionalization of judicial ethics under the guise of Due Process and "good government." Caperton, usually portrayed as simple case of corruption, is not exactly what it seems.
Update: In a post entitled "In search of a limiting principle," Lyle Dennison reports Justice Kennedy's fretting at oral argument over the line-drawing exercise inherent in constitutionalizing an "appearance of impropriety" standard for judicial recusal.