I spent this morning reading the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. The ruling has been getting a fair amount of attention, including the lead editorial in today’s Times. As in any interesting case, the court went 5-4, with Kennedy ending up on the Stevens not the Scalia side. The case was over whether West Virginia judge Brent Benjamin was bound to recuse himself in a case involving one of his campaign contributors. As the majority pointed out in the ruling, Massey Coal wasn’t just a contributor, but rather contributed $3 million to a judicial race, eclipsing the amount spent by every other contributor combined. What happened was that the previous judge ruled that Massey Coal owed $50 million in a lawsuit, so Massey figured it would be cheaper to just buy a new judge and pocket the $47 million. No dice says the highest court in the land.
What’s interesting about the decision is the standard for recusal. The standard is not whether or not the judge is corrupt, but whether there’s an appearance of impropriety. So Benjamin’s protestations that he was not corrupt (uh huh) aren’t relevant to whether or not the average person would imagine him to be corrupt. What the judgment does not do is set a standard. Instead the ruling makes specific reference to how extraordinary this specific case was. Here’s Justice Kennedy writing for the majority,

Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare.

Kennedy’s point seems to be that this is an especially bad case that requires federal intervention, but that existing mechanisms can take care of all other conflict of interest problems. I don’t really see it as the Court’s role to rule in individual disputes with little impact on similar cases. We saw the kind of ruling that leads to in Bush v. Gore. I don’t disagree with the majority’s opinion, in fact I think it’s fantastic that at least five of the nine justices see a disinterested judge as an integral part of the constitutional right to due process. But where now is the line drawn? What happens if the defendant only donated a million dollars? How about 50 dollars? Judicial elections mean that judges have to go out and ask for money. The people who are especially invested in the outcome of a judicial elections are people who will or could come before that judge. I don’t know how the Court can say a certain dollar amount no longer constitutes a conflict of interest.
There are a few ways to make sure judges are not beholden to campaign contributors. The first is to end judicial elections period and move to only appointed judges. I’m not convinced this is markedly better. The judges are still selected by elected representatives who have to go get moneys from corporations, so it only removes the corruption one step away. In Jeffrey Toobin’s New Yorker profile of Chief Justice of the U.S. John Roberts, Toobin runs the numbers on the supposedly  moderate Roberts and finds that he rules for corporate defendants the vast majority of the time. So politicians elected with corporate money appoint judges who ideologically support corporations. I’d almost rather have the corrupt ones than the hardliners.
The alternative, besides the Supreme Court enforcing a new standard for recusal it seems unwilling to do, is publicly financed elections. I understand that public financing writ large isn’t all that popular with politicians (my boy Feingold excluded), but can’t we agree it’s not a good idea for corporations to be buying judges? Judicial elections are comparatively cheap and it wouldn’t seem hard to get the public behind the idea of a less-corrupt judiciary. Not to mention it could be a trial run of a public financing system that the people might just like. There will always be a need for judicial recusal since judges will always have friends and family (excepting, of course, Antonin Scalia). But our system should ensure we elect and appoint the least corrupt jurists possible. After all, the Court just ruled having a not-corrupt judge is a 14th Amendment right.

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