6/10/2009 6:00:00 PM PERRY/Judges and contributions
By BRIAN PERRY
The United States Supreme Court ruled 5-4 Monday that a West Virginia coal's executive political activity to defeat an elected state supreme court justice required the recusal of that candidate's elected opponent in a case involving the executive's company. The majority opinion authored by Justice Anthony Kennedy ruled, "significant and disproportionate influence - coupled with the temporal relationship between the election and the pending case" created a "possible temptation to the average judge to lead him not to hold the balance nice, clear and true."
The case involved a $50 million verdict against West Virginia's A.T. Massey Coal Company, a component of Massey Energy Company. Don Blakenship, CEO of Massey, anticipated opposition to his appeal from West Virginia Supreme Court of Appeals Justice Warren McGraw. Blakenship sought to defeat McGraw for reelection.
Disagreeing with an elected official and defeating them for reelection is the American political way. Blakenship contributed the statutory maximum of $1000 to the campaign of McGraw's opponent, Brent Benjamin. Blakenship donated nearly $2.5 million to the 527 organization "And For The Sake Of The Kids" which used his contributions to attack McGraw. Blakenship spent an additional $500,000 on independent expenditures to support Benjamin.
Benjamin defeated McGraw 53 percent to 47 percent. When the Massey case came up on appeal, Benjamin declined to recuse himself and joined two other justices in reversing the verdict 3-2.
The Supreme Court did not find Blakenship had done anything wrong. Nor did it find Benjamin had erred in finding himself fair and unbiased. It did rule that the appearance of possible bias required recusal in this "extreme" case.
Kennedy writes, "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case....a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election and the apparent effect such contribution had on the outcome of the election."
Kennedy notes the political advocacy alone was not sufficient, but the "temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical."
For you or me, spending $3 million to influence the selection of a judge may be extreme. But for someone like Massey, or George Soros, it's just a sneeze in a hurricane. I wonder whether these same standards should apply to unelected federal judges whose confirmations sometimes utilize millions of dollars.
For example, Organizing for America (formerly Obama for America and still at BarackObama.com) is conducting a "Stand with Sotomayor" campaign. The liberal special interest group People for the American Way also seeks (and spends money) to advance the confirmation of Judge Sonia Sotomayor. Were a special interest group to affect the outcome of the confirmation, does that not also create a possible temptation to the average judge?
Queries to the scope of application increase rather than decrease from the ruling. In his dissent Chief Justice John Roberts lists forty questions unanswered by the majority opinion: How much money is too much money? How do you determine "disproportionate"? Are direct contributions and independent expenditures treated the same? How long does the probability of bias last? What about retention elections? What if disproportionate support comes from a religious, racial, or ideological group? What if the judge rules against the supporter in other cases first? What if the candidate disclaims the support during the campaign? Would a debt of gratitude extend to a newspaper endorsement?
Roberts writes 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?)."
Next year Mississippians will elect five appeals court justices and one supreme court justice, as well as circuit court judges. In 2012, four more state supreme court justices will be up for election. During those elections, many will shout and warn about Caperton (the plaintiff in the Massey case) claims. While the Court dissenters warned of such challenges, the majority telegraphs a lack of excitement to entertain such cases. Kennedy opined this to be "an extraordinary situation" of "extreme facts" with the application "confined to rare instances."
The freedom to contribute up to Mississippi's statutory limit of $5000 per candidate by an individual remains intact, as do the rights of organizations to conduct independent expenditures, even those that exceed the scope of a candidate's campaign. Issue advocacy also remains protected. Politically, Caperton will have little affect on Mississippi politics.
Brian Perry, a former congressional aide, is a partner in a public affairs firm. Reach him at reasonablyright@brianperry.ms.
