If you were a party in an important court case — and it’s safe to say that for most people, just about anything that requires them to be in a courtroom is by definition “important” — would you want that case presided over by a judge your opponent had spent $3 million to elect?
The answer should be obvious. The question, in pretty much those words, was raised last week by a former state solicitor general named Theodore Olson, who found himself — or rather, his client — in exactly that position. And it’s a question whose very important ramifications the U.S. Supreme Court is considering.
The case at the center of the discussion involves West Virginia Supreme Court Justice Brent Benjamin, who refused repeated requests for his recusal from a case in which an energy company, whose CEO had spent more than $3 million to help elect Benjamin, was appealing an $80-million-plus verdict against it.
Benjamin was the swing vote in a 3-2 court decision to overturn the verdict.
U.S. Supreme Court Justice John Paul Stevens, among others, found the situation more than troublesome: “We have never confronted a case as extreme as this before,” he said. The conflict-of-interest implications, Stevens said, fit former colleague Potter Stewart’s famous line about obscenity: “I can’t define it, but I know it when I see it.”
In a situation this obvious, so should everyone else, including Justice Benjamin.
What could give the high court trouble is that judicial conflicts of interest are rigidly defined in some circumstances, vague to nonexistent in others. For instance, a judge cannot hear a case involving a company in which he invests. Meaning that if Benjamin had owned one share of stock in Massey Energy he would be disqualified, but a $3 million campaign expenditure is, legally at least, no problem.
Olson, who represents the other party in the case, Harman Mining, argued that the constitutional guarantee of a fair trial guards against “even the probability of an unfair tribunal.”
Justice Antonin Scalia disagreed, saying the Constitution prohibits only demonstrable bias, such as a judge’s financial interest in the outcome of a case: “We’re being urged to adopt out of nowhere a new standard of probability of bias.”
It is more than a purely semantic distinction to suggest that the issue is not so much bias as conflict of interest, or the obvious appearance of conflict. "Our whole system,” said Justice Anthony Kennedy, “is designed to ensure confidence in our judgments."
The implications, even beyond the paramount issue of judicial integrity, are significant. Special-interest spending in judicial elections, as in other elections, has inflated dramatically in recent years: Justice at Stake, a nonprofit that tracks campaign spending in judicial races, said state court candidates have raised more than $168 million since 2000.
The high court expects to issue a decision in this matter by summer. Meanwhile, the Benjamin case and others like it come up short by another, less formal legal standard: the common sense test. That might be hard to define, but most of us know it when we see it.
— Dusty Nix, for the editorial board
