Our previous blog post discussed the selection of judges through election and Arizona’s merit selection system for appointment of judges, two different approaches coexisting in the Arizona system.  As we pointed out, there are great concerns that in the election of judges, campaign contributions can interfere with judicial impartiality.  An extreme example of this concern is illustrated in the relatively recent U.S. Supreme Court case of Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009).

Caperton involved a judge in the West Virginia State Supreme Court of Appeals who was set to hear an appeal in which the defendant coal company had been ordered to pay $50 million in a jury trial.  The judge refused to recuse himself from the bench despite the fact that the coal company’s chairman, CEO and president backed his election to the bench with a donation of $3 million.

The U.S. Supreme Court held that due process required recusal for fair and impartial review in this case.  Justice Kennedy, writing for the majority, cited the Court’s previous opinions stating that recusal is required when a judge has “a direct, personal, substantial, pecuniary interest” in a case, and when “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”  In applying these principles, the Court concluded that there was a “serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a signficant 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.”  Id. at 884.  The Court looked to the size of the contribution relative to the total amount spent in the election and its apparent effect on the outcome.

The Court repeatedly emphasized that this was an extraordinary situation with extreme facts leading to their conclusion of potential bias.  Accordingly, the Court pointed out that such an application of the Due Process Clause of the Constitution will be confined to rare instances.  Because codes of judicial conduct provide greater protection than due process requires, most disputes over disqualification will be resolved without resorting to the Constitution.

The dissent in Caperton,written by Chief Justice Roberts, pointed out that the majority opinion was unwise in widening the list of situations for which a judge needs to recuse himself, by adding the probability that bias exists to the list.  They criticized this criterion as too vague, leaving too much to one’s discretion, and lacking clear and practical guidelines.  The dissent listed forty unanswered questions remaining after the majority’s decision (“only a few uncertainties that quickly come to mind”). Id. at 898.

Justice Scalia, in his own dissent, expressed his concern that this decision creates “vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges.”  Id. at 902.  Despite the rationale behind the majority’s decision to keep the public confidence in the legal system intact, Justice Scalia predicted that this decision will likely do just the opposite.  It will reduce the confidence of the people in the system with the impression it gives that legal remedies are an elaborate game, allowing the person with the cleverest lawyer to win, rather than a system concerned with delivering real-world justice.

Now, five years after Caperton, what has changed in the landscape of judicial elections in the United States?  According to some analysts, a crisis of confidence in the judiciary has escalated, not receded.  In Caperton, the Supreme Court prodded states that elect judges to do something about the threat of justice posed by special interest spending that can influence decisions in the courtroom.  Yet since then, commentators have opined that too few states have enacted or even considered meaningful measures to keep cash out of the courtroom.

Unfortunately, of the 39 states that hold judicial elections, 22 lack recusal rules addressing the disqualification of judges who received significant campaign contributions from parties appearing before them in court.  Additionally, 35 states do not have rules to address independent expenditures made in support of a judge, which the contributor in Caperton demonstrated could comprise the majority of a campaign spender’s funds.    Falce, Allyse. “On Anniversary of Caperton v. Massey, Recusal Rules Still an Issue.” Brennan Center for Justice. New York University School of Law, 6 June 2014. Web. 3 Sept. 2014.  Judicial merit selection and elections both have their pros and cons, and in either case appropriate rules need to be in place to address recusal, the possibility of bias, and appearance of impropriety.


Written:  9/3/14

Approved:  9/9/14

Published:  9/12/14

Categories:  Judicial system

Key Words:  election of judges; campaign contributions to judges; Caperton v. Massey

Title:  The Dilemma of Electing Judges:  Caperton v. A.T. Massey Coal Co.

Description:  The US Supreme Court decision Caperton v. Massey illustrates an extreme example of how campaign contributions can influence the election of judges.