We have been following the West Virginia case involving A.T. Massey Coal Co., involving a fundamental question of judicial ethics. A divided court voted 5-4 in Caperton v. A.T. Massey Coal, et al. (08-22) that West Virginia Justice Brent D. Benjmain violated the constitution by sitting on a case involving the major donor in his campaign, A.T. Massey’s chief executive, Don Blankenship.
This is an enormously important decision in establishing constitutional protections for litigants from judicial bias and abuse. Justice Anthony Kennedy again played his swing vote role.
In his majority opinion, Kennedy (as expected) emphasized the facts of the case as an example of a rare and flagrant violation that reaches the level of a constitutional deprivation: “The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.”
Kennedy wrote that Blankenship’s massive contributions to unseat another justice by assisting Benjamin was cause enough for the latter’s recusal from the case: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when…a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was a serious, objective risk of actual bias that required Justice Benjamin’s recusal.” Kennedy makes clear that this is a case-by-case analysis balancing various factors:
The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. The $50 million adverse jury verdict had been entered before the election, and the Supreme Court of Appeals was the next step once the state trial court dealt with post-trial motions. So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor’s company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.
Chief John Roberts, Antonin Scalia, Clarence Thomas, and Sam Alito voted to reject the claim. Roberts said that the ruling will only encourage more litigants to bring allegations of judicial bias.
For a copy of the opinion, click here.
OH MY GOD, we are spending stimulus on summer jobs for teens:
President Obama pledged Monday to pump stimulus money into the economy over the next several months as part of a plan to create or save more than 600,000 jobs this summer, though the administration admits that at least 125,000 of those jobs are temporary summer jobs meant for teenagers.
Very VERY bad call:
Secretary of State Hillary Clinton invites Va. assembly candidate Esam Omeish — who once told crowd ‘jihad way is the way to liberate your land’ — to participate in conference call on bridging divides with Muslims.
Could Obama Lose the Associated Press?
The AP has been one of the solidest members of the Democratic Party coalition in recent years. Still, some AP reporters seem to be getting skeptical, as witnessed by today’s headline: “Obama repackages stimulus plans with old promises.”
Some excerpts:
President Barack Obama assured the nation his recovery plan was on track Monday, scrambling to calm Americans unnerved by unemployment rates still persistently rising nearly four months after he signed the biggest economic stimulus in history. …
Neither the acceleration nor the jobs goal are new. Both represent a White House repackaging of promises and projects to blunt criticism that the effects haven’t been worth the historic price tag. And the job estimate is so murky, it can never be verified.
The economy has shed 1.6 million jobs since the stimulus measure was signed in February, far overshadowing White House announcements estimating the effort has saved 150,000 jobs. Public opinion of Obama’s handling of the economy has declined along with the jobs data.
For the first time, the administration admitted the economic forecasts it used to sell the stimulus were overly optimistic.
“At the time, our forecast seemed reasonable,” Vice President Joe Biden’s top economic adviser, Jared Bernstein, said Monday, explaining that the White House underestimated the scope of the recession. “Now, looking back, it was clearly too optimistic.”
Quick Take: Evan Thomas vs. Evan Thomas
Newsweek editor Evan Thomas has created a precious contrast in the media’s approach to presidents Bush and Obama:
“Our job is to bash the president, that’s what we do.” — Evan Thomas responding to a question on whether the media’s unfair to Bush on the TV talk show Inside Washington, February 2, 2007.
“I mean in a way Obama’s standing above the country, above – above the world, he’s sort of God.” – Evan Thomas on Hardball, June 5, 2009.
Mike A., I echo and completely agree with your earlier post…well done. If the heavy lifting cannot be done at the Supreme Court, where shall it be done?
This decision is in the same direction as the new federal judicial code of conduct. It seems to hit on two of those canons:
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CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES
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CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY
http://blogdredd.blogspot.com/2009/03/new-judicial-code-of-conduct.html
The requirements for recusal do not include proof of corruption. If that were the case, recusal could virtually never be compelled.
on the surface it appears cut and dried but I dont think it is. Is Benjamin a friend of the Massey Co. exec? Will he recieve anything for his opinion? Just because some rich guy wanted to sway an election dosent mean he has the elected judge in his back pocket.
foo,
The fortune cookie was great, but I believe what he actually consulted before the final opinion was his magic 8 ball.
Randy,
You just wait. Scalia won’t apologize when Cheney shoots him in the face, no sir reeee! Then will see a different type of “objectivity” should Cheney appear before his magnum mysterium!
Today is a good day for the rule of law; for the Constitution. I am not nearly as schooled in the finer legals points of this case as some of you are; but, for me, it is enough to have good days once in a while
Jim B.,
In the United States, the term “recusal” is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned “Disqualification of justice, judge, or magistrate judge,” provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The same section also provides that a judge is disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding”; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.
28 U.S.C. sec. 144, captioned “Bias or prejudice of judge,” provides that under circumstances, when a party to a case in a United States District Court files a “timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party,” the case shall be transferred to another judge.
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I think under any standard the judge should have stepped aside as he is clearly in favor of one side, biased. The single largest campaign donation.
The first one is, I do not think that he was impartial. I am pleased that the US Sct did the right thing. In my opinion of course.
Oh and here’s a little sample of Don Blankenship’s regard for violation of law, and by extension, judicial ethics:
“We don’t pay much attention to the violation count.”
Don Blankenship, CEO, Massey Energy, Forbes Magazine 9/26/03
“Chief John Roberts, Antonin Scalia, Clarence Thomas, and Sam Alito voted to reject the claim.”
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So what shall we call them now? Four blind mice!
Three blind mice. Three blind mice.
See how they run. See how they run.
They all ran after the farmer’s wife,
Who cut off their tails with a carving knife,
Did you ever see such a sight in your life,
As three blind mice?
Jim B.,
I think the question is, when is it improper to solicit and accept campaign donations from someone that has a vested interest in the outcome. I think that this case is easy enough for moral upright judges to recuse themselves from the appearance of impropriety.
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Recusal in the United States
In the United States, the term “recusal” is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned “Disqualification of justice, judge, or magistrate judge,” provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The same section also provides that a judge is disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding”; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.
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In the definition above, it could be stated that the judge had a vested interest in the outcome. The man bought and paid for his election, hoping that the outcome would be in his favor.
It is sad that the standards for judicial conduct are so low that four Supreme Court justices didn’t see a problem in this case. Then again, Scalia ruled on a case brought by Dick Cheney despite being Cheney’s good friend, asserting that he was principled enough to act in an unbiased manner and saw no legal basis for his recusal.
Far worse than being craven ideologues, the fact that these justices are so sure of their perfection that they feel no need to recognize potential or actual conflict of interest makes me despair. Are they really the best jurists in America? Heaven help us if that is so.
The majority made the correct call. However, the dissenting opinions also have merit.
When is the amount of one’s donation too much? The Court failed to answer this question. They failed to clarify the law.
In the instant case, the influence was clear. It’s what the majority failed to say that gives merit to the dissent. If Capperton had only donated $2 million; should the judge have recused himself? -What about $1 million? At what point does the financial contribution become too much?
What if the donation came from Capperton’s attorney?
I think the majority opinion was careful to respect state sovereignty. I can only hope the states recognize such, and take the initiative to create more narrowly defined guidelines, in order to prevent even the appearance of partiality.
Scalia’s dissent was pathetic. Isn’t he Mr. We don’t need no stinking foreign law in this here Court? Why cite the Talmud of all things? Perhaps there’s a fortune cookie that’s also on point. I don’t subscribe to knee-jerk rejection(s) of his decisions or dissents, but this was a sad, sad showing.
Another sad thing is that if you were only told this was a 5-4 decision you would easily identify the 4 dissenting judges. Isn’t that a problem? That’s what made Wyeth such a surprise…Thomas joined the majority!
“Justices Scalia and Roberts should understand that the rest of us are mere mortals and occasionally fail to exhibit the level of unbiased, dispassionate and objective analysis so characteristic of their judicial deliberations.”
Mike A.,
You were wise to have illuminated this vexing problem.
The dissent by Justice Roberts is merely a variation on the classic “floodgates” justification for a court’s refusal to right a wrong: if we order recusal, we will have to deal with these issues again. Better to allow an injustice to stand than to potentially increase the court’s workload in the future. Never mind that the non-recusing appellate judge in this instance was virtually purchased by the losing party at the trial level.
Justice Scalia’s dissent was equally predictable. Some wrongs are without a remedy. Great revelation, Justice Scalia.
The dissent objects to the fact that the majority decision raises more questions than it answers. That is true, but it is hardly the first time in Supreme Court history that a principle of law has not been completely fleshed out in an opinion. The majority was dealing with the facts before it and the opinion was as narrowly drawn as it could be under the circumstances.
Finally, I suggest that there is a bit of unspoken arrogance in the minority’s position that the refusal of a judge to recuse himself can never give rise to an equal protection claim. Justices Scalia and Roberts should understand that the rest of us are mere mortals and occasionally fail to exhibit the level of unbiased, dispassionate and objective analysis so characteristic of their judicial deliberations.
“Chief John Roberts, Antonin Scalia, Clarence Thomas, and Sam Alito voted to reject the claim. Roberts said that the ruling will only encourage more litigants to bring allegations of judicial bias.”
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Surprise! Most likely, this was judicial dissension towards self-preservation by these 4 judicially biased justices.