This afternoon, the U.S. Supreme Court granted certiorari in Caperton v. A.T. Massey Coal Co. — the West Virginia case questioning whether it is a violation of the federal due process clause if a judge fails to recuse himself from a case in which a major campaign donor is a party. (Here are SCOTUSblog’s links and writeup).

Because partisan election of judges is a recurring issue in Texas, I’m betting this blog talks about Caperton again. My initial thoughts follow the break.

The facts of the West Virginia case are extreme, (( Here is Lyle Denniston’s summary:

Some state courts have ruled that due process requires a recusal both for actual bias or the appearance of bias, while others have ruled that only proof of actual bias in favor of the campaign donor’s interests is sufficient to require recusal.

The appeal targets a West Virginia Supreme Court justice, Brent D. Benjamin, who chose to sit on a case before that court testing a $50 million jury verdict against a company whose chief executive officer had provided more than 60 percent of the total spent on Benjamin’s campaign for a seat on the state’s highest court. The appeal granted review on Friday is by the founder of a group of West Virginia coal companies that were competitors in coal sales to A.T. Massey Coal Co., Inc., whose chairman was the campaign donor, Don L. Blankenship. The state Supreme Court overturned the jury verdict against the Massey firm, by a 3-2 vote with Justice Benjamin in the majority.

)) but the legal principle involved would seem to cut across a whole range of legal doctrines. I doubt the Court will resolve any of my questions, but here are a few:


* If campaign contributions are really constitutionally protected speech, how much “speech” is permitted before the “speech” then becomes penalized with a recusal? That is, if you like a judge’s philosophy, how much can you give before you run the risk of not having that judge on the Court — the very reason, one presumes, you were donating?

  • Do you have to pay careful attention to what others are donating to avoid giving too large a percentage?

  • If both sides give to the same candidate, does a court really have to try to weigh which one gave more? Or is there a threshold where it washes out?

  • What about donations by lawyers or law firms instead of by litigants? Do such donations disqualify the judges from hearing cases in which those lawyers’ clients appear?

  • What about large donations or coordinated campaigns by interest groups rather than individual litigants? If it’s crystal clear that a particular interest group has donated a huge sum to a particular candidate, what is the constitutional difference between that and an individual member of that group making precisely the same donation?

  • Does the federal due process clause apply equally to legislative actions? Isn’t it just as destructive to the fair workings of our government for a key legislative vote to be cast by someone who received a large campaign donation from someone with an interest in the outcome? If there is any federal constitutional difference between these two situations in a state in states that elect their judges, what is it?

  • How about elected state agencies that have regulatory oversight and decide contested cases? When they make decisions in favor of campaign donors, is the constitution implicated?

  • Does the State’s method of choosing replacement judges bear on federal constitutional due process? What if — just hypothetically — the state constitution gives the power of choosing replacement judges to the governor and that person has himself or herself also received large contributions from the same donor? (Extra credit: What if the donor to this hypothetical governor is the opposing party in the litigation?)

  • What if the vote on the court or the board isn’t close? Does that matter — is this due process interest in the appearance of bias or an actual injury to a protected interest?

  • For that matter, does it matter if the judge’s election was close, or even uncontested? There are one-party jurisdictions (whole states and areas within them) where the elections become something of a formality because only one candidate runs.

  • Does an intervening election cure the defect? If a judge was originally elected with a large enough campaign contribution to trigger whatever rule the Court devises, how long is recusal constitutionally required? If the judge runs for and wins re-election (perhaps with a smaller donation), is the defect cured?

To be clear: I’m no fan of judicial elections or the need for judges to raise campaign cash. But I’m at a loss to see how the federal constitution could supply a workable rule to parse “good” donations from “bad” donations.

On the other hand, if the Court simply rules that all contributions are disqualifying … that might lead naturally to a different way of picking judges. (We do also have political means to accomplish that end.)

Related: Slate has an interesting article published today that talks about initiatives around the country to disband merit-based judicial selection in favor of partisan elections of judges.