UPDATE, March 3: The Associated Press reports, "The court's four liberal justices and the conservative-leaning Anthony Kennedy all expressed support for a ruling that the Constitution's guarantee of a fair trial could require judges not to participate in a case in which there was a likelihood of bias." (Read more)
The Washington Post offers a good one-two punch on the question of electing judges, especially appellate judges in big-money races, as the Supreme Court prepares to hear a case closely related to the issue: The appeal of a 3-2 ruling by the West Virginia Supreme Court in which one justice refused to disqualify himself though the winning party, Massey Energy Chairman Don Blankenship, was largely responsible for his election.
Backing the loser, Virginia coal operator Hugh Caperton, "are a number of unlikely compatriots -- Wal-Mart siding with the Brennan Center for Justice at the New York University School of Law, for instance," reports the Post's Robert Barnes. The center's James Sample told him: "It's about the fundamental responsibility of the judiciary: a fair hearing before an impartial arbiter. ... This is a fact-bound, multi-factor, worst-of-the-worst scenario; if any sort of floor exists for due process, this is the best case to plumb those depths." A Post editorial put it another way: "If ever there was a case that illustrated why electing judges is a bad idea, it is the one out of West Virginia."
Blankenship argues that he "made lawful contributions to and on behalf of now-Justice Brent Benjamin," Barnes notes. "As in other political causes he has supported, he has a right to his political views about who is best to serve on the West Virginia Supreme Court. And there is no evidence that Benjamin had anything to gain financially from the dispute between Caperton and Blankenship, the only reason for recusal the Supreme Court until now has recognized."
Most of those on the other side "worry about the role money now plays in judicial elections," Barnes reports. "Wal-Mart joined with Lockheed Martin, Pepsi and other corporations on Caperton's side, telling the court in a brief that requiring Benjamin's recusal 'would signal to businesses and the general public that judicial decisions cannot be bought and sold.' Justice at Stake, a judicial reform group that has been sounding the alarm about the role of money in judges' races, notes that the amount of money raised by state supreme court candidates from 2000 to 2007 was almost $168 million, nearly double that raised during the 1990s. Former Supreme Court justice Sandra Day O'Connor is among those sharply critical of those elections.
The Justice at Stake brief, joined by Common Cause, the League of Women Voters and a host of others, warns the court that it would 'weaken state reform efforts' to find no 'constitutionally significant threat to equal justice' in the case." However, "no one proposes a clear line for what level of support" should be found to require judges to withdraw from cases. For more of Barnes' story, click here.
The Post editorial concludes, "States should consider barring judges from considering cases involving litigants or lawyers who were directly or indirectly responsible for campaign contributions beyond a certain limit. More fundamental, states should consider abolishing judicial elections in favor of an appointment system that distances jurists from politics and fundraising." (Read more)
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