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Published: Friday, 6/12/2009

Bias on the bench

THE U.S. Supreme Court acknowledged the obvious this week in a decision from West Virginia with sobering consequences for the 39 states (including Ohio) that elect judges. In a 5-4 ruling, the court found for the first time that judges who take huge sums in campaign contributions from those whose cases come before them should recuse themselves.

As encouraging as the outcome was in marrying common sense with legal sense, it also gives rise to several depressing thoughts. In the first place, the obvious problem here did not move the dissenting four justices past their ideological moorings to the point where they wanted to do something about it.

Consider the facts that the moderate and liberal majority sought to address and the conservative minority would have ignored. Hugh Caperton, a West Virginia coal company owner, had sued a Massey Energy affiliate alleging fraud and in 2002 a West Virginia jury awarded him $50 million in damages. Massey appealed to the West Virginia Supreme Court.

In 2004, Massey's chief executive officer, Don Blankenship, spent $3 million to change the make-up of that court. He supported Brent Benjamin in his successful bid to win a seat, ousting an incumbent justice in the process. Justice Benjamin was on the bench three years later when the appeal was heard. Although asked to step down from the case because of the appearance of a conflict of interest, he stayed on and was twice part of a 3-2 majority ruling in Massey's favor.

As Justice Anthony Kennedy wrote in the majority opinion, Mr. Blankenship's $3 million in contributions (only $1,000 directly to the candidate and the rest to other avenues of support) was more than the total spent by all other supporters of the candidate and three times the amount spent by his own committee.

On these extreme facts, Justice Kennedy wrote, "the probability of actual bias rises to an unconstitutional level." But he also argued that the extraordinary nature of the case was not comparable to others and would not make for a flood of recusal motions - the overriding fear of Chief Justice John Roberts and fellow dissenters.

It is certainly depressing to note the willingness of the conservative minority to be blind to the appearance of bias in the present while having eyes open only to theoretical problems in the future. The dissenters also ignored the good sense that states could bring to bear on writing their own rules for recusal, perhaps with the help of American Bar Association guidelines. Nothing in this ruling disallows judges from receiving campaign funding, and sensible distinctions are not beyond the power of reason.

The final note of depression is that this case flows from a system that shows no sign of changing - the election of judges.

As long as money is exchanged to support judicial candidates, the appearance of, and potential for, bias will be there, no matter how little or extraordinary the sum.

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