John Grisham's 2008 novel The Appeal is a missive against the election of state judges. It follows the story of two local attorneys who win a huge verdict of behalf of townspeople poisoned by years of misdeed by the massive Krane Chemical company. However, after the settlement but before the appeal, the state has a judicial election and Krane Chemical sponsors a candidate who is ultimately elected to the State Supreme Court and votes to overturn the verdict. One could write it off as a silly and pedantic book except for one fact. It is basically a true story.
Enter Caperton v. A.T. Massey Coal out of West Virginia. It's The Appeal without the emotional aspect. Caperton won a $50 million lawsuit against the coal company. After the verdict but before the appeal, West Virginia had a judicial election. Don Blankenship, the CEO of A.T. Massey Coal, invested over $3 million in a candidate running against an incumbent for a seat on the West Virginia Supreme Court. The Massey/Blakenship candidate (Justice Benjamin) won and, despite motions to recuse himself, voted with the slim 3-2 majority to overturn the jury verdict.
The story doesn't end there. This is West Virginia. Caperton moved for rehearing and there were 3 separate motions for recusal. On the pro-Massey side, Justice Maynard was forced to recuse himself after photos appeared of him vacationing with Blankenship in the French Riviera while the case was pending. Justice Starcher, who had voted against Massey also agreed to recuse himself because of his public criticism of Blankenship's attempts to purchase justice. Starcher and Caperton urged Benjamin to recuse himself, but he refused and, ironically, became the acting chief justice on the case and again voted to overturn the decision in yet another 3-2 decision.
The legal issues involved are actually quite mundane. The question is whether these facts violate the right to a fair trial under the due process clause. The 5-4 Supreme Court majority (Kennedy, Souter, Breyer, Ginsburg, Stevens) ruled that it did, and the 4 Justice minority (Roberts, Scalia, Thomas, Alito) said it didn't. (One has to query whether Scalia would have thought recusal was necessary for the judge who vacationed on Blankenship's dime. After all, he went face shooting with Cheney while Cheney had a case before the SCOTUS). In terms of reasoning, the Majority opinion is the better reasoned, but the dissent makes valid points as well.
The Majority opinion simply holds that a justice who received absurd support in a judicial election by a litigant with a case before him must recuse himself from deciding that case. It is a decision grounded in fair play and common sense, if not the Due Process Clause of the 14th amendment.
What the majority does not do, is question whether Benjamin had actual bias. It focused on the perception of bias and the potential for bias, but never came out and said Benjamin was biased. This is what I would call gilding the Lilly. Benjamin was clearly biased. He was on the court because of Blankenship and Massey. He knew which side his bread was buttered on, and even if there was not an acknowledged quid pro quo, Benjamin had to know that if he decided against Massey, a spiteful Blankenship had the ability, if not the motive, to exact revenge by bankrolling an opponent to Benjamin just as he bankrolled Benjamin against the incumbent in the first place.
The Dissent capitalizes on the old legal saying that hard cases make bad law. The primary argument is that the decision gives no guidance as to what constitutes a constitutional violation. This is kind of a weak argument because Supreme Court decisions often do this. The SCOTUS can only decide the case it has before them. In this respect, the contours of constitutional law get decided over a period of time. The Supreme Court decided a litany of cases involving the Federal Sentencing Guidelines over many years before finally ruling them unconstitutional. Likewise, the Court will continue to refine this area of law as more cases come before the tribunal.
The Dissent's second argument is what is called a parade of horribles. This decision will lead to all of these awful things. This is used quite a bit in dissents, whether by conservative or moderates or liberals, and the horribles never come true. Furthermore, the parade of horribles of the dissent fails to recognize that if its decision were the majority, corporate interests would constantly attempt to purchase justice by bankrolling Supreme Court candidates in states that allow the direct election of judges.
The dissent lists 40 unanswered questions to demonstrate how unworkable the standard enunciated by the Court is. These questions range from how much in donations is too much? Does past history of civic donations matter? What about interest groups? Does a Latina judge have to recuse herself from every case involving a Latina? (in this respect I think it is funny that conservatives think a Latina justice will be biased in favor of Latinas, but that a Justice bought and paid for by corporate interests can remain neutral).
In this respect, the dissent is right. It is impossible to know what donations make which judges have to recuse themselves. But the issue is larger than just judicial donations. A judge should always decide a case based on the facts and the laws before them. Having to answer to a constituency, whether the regular voting public, or the big money supporters, introduces a significant distraction. Justice Benjamin is in no different a position deciding a case for Massey because of huge campaign donations than is any elected Judge who has ever thought how the public would respond to an acquittal of a criminal defendant.
Thus, what the dissent is really highlighting, whether they mean to or not, is what Grisham said throughout The Appeal; a system of elected judges simply cannot work. Elected judges become additional legislatures. Want to get rid of punitive damages against corporations? Bankroll a candidate who supports corporate interests. Can't get the legislature to pass a gay-marriage bill? Bankroll 3-5 gay-marriage supporters and stack the state supreme court. Judicial elections are cheaper anyway, so you save money by focusing on elected judges instead of elected representatives.
In regards to the case before it, the majority is completely correct that Caperton did not receive a fair trial because one of the presiding judges had received enormous financial support from Caperton's adversary and the dissent is right that no workable solution emerges from the Majority opinion. This is because there IS no workable solution as long as judges are popularly elected. A judge should be responsive only to the parties before the court, and not to public opinion or big money donors.
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