Judges and 'Bias'

Judges and 'Bias'. WSJ Editorial
WSJ, Jun 09, 2009

The march away from a credible, accountable judiciary took another leap yesterday, as a 5-4 Supreme Court majority gave federal judges unprecedented oversight of state court recusal standards. This is more damaging than it sounds.

West Virginia's Massey coal company CEO Don Blankenship spent some $3 million in 2004 on the judicial election of Brent Benjamin to the state Supreme Court of Appeals, including donations to outside groups. When a case involving Massey later came before Judge Benjamin's court and he ruled in favor of Massey, the loser sued and claimed a denial of due process because the judge didn't recuse himself. According to the Supreme Court's majority in Caperton v. Massey, a judge who receives support that has a "significant and disproportionate influence" on his election can't then be trusted to be neutral on the bench.

Heretofore, judges needed to recuse themselves on due process grounds only if they had a direct financial interest in a case, and in criminal contempt cases in which the judge provoked the original courtroom outburst. Under Justice Anthony Kennedy's Caperton standard, judges must now recuse if there is a "probability of bias." But this would seem to be open to, well, judicial interpretation. If $3 million in donations meets the probable bias test, what about $1 million, or $10,000? For that matter, should we assume judges feel a "debt of hostility" toward those who contribute to opponents?

In his dissent, Chief Justice John Roberts lists 40 questions that represent only "a few uncertainties that quickly come to mind." The majority opinion "requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?) and psychologists (is there likely to be a debt of gratitude?)"

Justice Kennedy tries to limit any judicial chaos by insisting that not every campaign contribution would demand recusal, and that this is an "exceptional case." But the support for this position by such opponents of judicial elections as the Brennan Center for Justice and the George Soros-funded Justice at Stake gives away the game.

These groups hope to brand all judicial elections with the taint of inevitable bias, and five Justices have now gone a long way to validating that claim. One result will be that far more decisions by elected judges will be challenged for bias, further tying up the courts and giving average citizens the impression that all judges can be bought. The ultimate goal of these groups is to have all judges selected by a club of lawyers and insiders that makes judges less accountable to average citizens.

Recusal standards are better handled at the state level, where individual judges are presumed to be impartial in their courtrooms. States have made their own rules for selecting judges, either through elections, or judicial selection commissions, or some variation of executive appointment and legislative confirmation. Allowing federal courts to second-guess state judges opens the door to unprecedented federal meddling.

Justice Kennedy may have indulged this intervention because his jurisprudence has always tended toward a presumption of judges as a superior, anointed class. He probably finds elections an untidy business. Yet the flood of challenges to judicial impartiality that he is unleashing will taint the entire judiciary by making most decisions appear personal. The cost of Mr. Kennedy's regrettable opinion will be a parade of Caperton motions, and a long shadow of doubt on courts across the country.