A bad U.S. Supreme Court ruling on judicial bias

As appeared in the Atlanta-Journal Constitution

It is said that “hard cases make good law.” Yet it could also be said that the recent U.S. Supreme Court ruling on the role of money in judicial races underscores where an easy case makes bad law. The 5-to-4 high court decision held that judges should disqualify themselves when a donor’s campaign contributions are large enough to raise “the probability of actual bias” – yet the decision didn’t specify a dollar amount for judges to consider.

The case involved allegations by Hugh Caperton, a mining executive who claimed he was run out of business by Massey Energy Co. His case ended up before a supreme court judge in West Virginia who benefitted from $3 million in various campaign contributions (including some from outside groups) from a Massey executive.

According to Caperton v. Massey, a judge who receives support that has “significant and disproportionate influence” can’t be trusted to be an impartial referee on the bench. One can easily point to a fact pattern this severe ($3 million in donations) and conclude that “judges should recuse.” But what about the thousands of cases less clear? Chief Justice John Roberts in his dissent derisively listed “a few uncertainties that quickly come to mind.” He said 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?)”

Writing for the majority, Justice Anthony Kennedy opined that not every campaign donation to a judge would require recusal and that this is “an exceptional case.” However, Kennedy’s weak assurances can’t hide the fact that this capricious decision is yet another step away from maintaining a credible, accountable judiciary.

There is a vocal and influential lobby, typified by the George Soros-funded Justice at Stake group and the Brennan Center for Justice, which opposes all judicial elections. They now celebrate the fact that the main result of Caperton will be that more and more rulings by elected judges will be challenged for “bias,” further logging court calendars and undermining public trust in the elected judiciary. These groups are working for the day when judges are less accountable to citizens and will simply be selected in backrooms by an elite group of legal insiders who know far more than the unwashed masses.,

The Wall Street Journal editorial analysis of Caperton also emphasizes a crucial point:

“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.”

Indeed, the Caperton ruling is a clear indictment of activist judges trying to use the Constitution to “right all wrongs.”

The author is a panelist on WAGA TV’s The Georgia Gang and former president of Southeastern Legal Foundation.