AN IMPROBABLE \u2018PROBABLE BIAS\u2019 DECISION
\nAs appeared in the Atlanta-Journal Constitution\n<\/p>\n
It is said that \u201chard cases make good law.\u201d 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\u2019s campaign contributions are large enough to raise \u201cthe probability of actual bias\u201d \u2013 yet the decision didn\u2019t specify a dollar amount for judges to consider.<\/p>\n
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.<\/p>\n
According to Caperton v. Massey, a judge who receives support that has \u201csignificant and disproportionate influence\u201d can\u2019t 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 \u201cjudges should recuse.\u201d But what about the thousands of cases less clear? Chief Justice John Roberts in his dissent derisively listed \u201ca few uncertainties that quickly come to mind.\u201d He said the majority opinion \u201crequires 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?)\u201d<\/p>\n
Writing for the majority, Justice Anthony Kennedy opined that not every campaign donation to a judge would require recusal and that this is \u201can exceptional case.\u201d However, Kennedy\u2019s weak assurances can\u2019t hide the fact that this capricious decision is yet another step away from maintaining a credible, accountable judiciary.<\/p>\n
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 \u201cbias,\u201d 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.,<\/p>\n
The Wall Street Journal editorial analysis of Caperton also emphasizes a crucial point:<\/p>\n
\u201cRecusal 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.\u201d<\/p>\n
Indeed, the Caperton ruling is a clear indictment of activist judges trying to use the Constitution to \u201cright all wrongs.\u201d<\/p>\n
The author is a panelist on WAGA TV\u2019s The Georgia Gang and former president of Southeastern Legal Foundation.<\/p>\n","protected":false},"excerpt":{"rendered":"
As appeared in the Atlanta-Journal Constitution<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":75,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-221","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/pages\/221","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=221"}],"version-history":[{"count":3,"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/pages\/221\/revisions"}],"predecessor-version":[{"id":263,"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/pages\/221\/revisions\/263"}],"up":[{"embeddable":true,"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=\/wp\/v2\/pages\/75"}],"wp:attachment":[{"href":"https:\/\/www.philkentconsulting.com\/wp\/wordpress\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=221"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}