You’d think a judge would be ethical

When I read about the Supreme Court decision requiring judges facing civil cases involving significant donors to their own election to recuse themselves, my first response was—this is a no-brainer! How could anyone be impartial in a decision where one of the litigants had donated millions of dollars to get them elected? More to the cynical point—why would anyone contribute that kind of money to get a judge elected unless one thought they might want that judge’s good favor somewhere down the line? Most people I know don’t fling around millions of dollars out of a philanthropic love of impartial justice for all.

Come to think of it, most people I know don’t fling around millions of dollars. Maybe I need new friends.

Anyway, it was nice to see the Supremes putting themselves on the line for the kind of judicial ethics most of us take for granted. In this case, Caperton v. Massey Coal, Massey had lost a $50 million jury verdict, and the president of Massey spent $3 million to get Benjamin elected to the West Virginia Supreme Court. After refusing to recuse himself, twice, Benjamin and the other judges overturned the original verdict. Although there was no other evidence of improper relations or quid pro quo, it is easy to understand Caperton’s sense of compromised due process.

But then I noticed something else. Four justices voted against this decision. Now, what on Earth were they thinking? This, of course, is a rhetorical question. The dissenting justices were the “usual suspects” of conservatives, whose decisions almost always seem to be coming from some other ethical planet than mine: Scalia, Thomas, Roberts and Alito. But Caperton seemed so obvious and straightforward, the kind of case where the questions of fairness and due process were so clear, partisan politics couldn’t affect it—or so I thought.

Not so fast, says my attorney friend and legal expert John Springgate. Things are never quite as simple or obvious as they first appear. Dissenters argued that state rules and codes already set forth when a judge should recuse (so the federal ruling is redundant), and that by imposing this new rule, they open the door to new levels of litigation in the 39 states that elect judges. “Hard cases sometimes make bad law.”

Nevada’s judicial codes allow litigants to switch judges (once, for a fee), largely eliminating the need for the Supreme Court’s ruling. But Nevada’s courts have faced problems from the opposite end of the spectrum—judges overzealous about recusing themselves. In Las Vegas, a judge attempted to recuse himself from a case involving a litigant who had contributed a small sum to the judge’s election. The Nevada Supreme Court instructed him to hear the case anyway.

As judges across the country face increasing threats of violence—including murder—Nevada’s case may point to a larger question raised by Caperton: When must a judge serve in spite of mitigating factors?

Additionally, Caperton raises the potential for corruption that flows from the system of electing, rather than appointing, judges. Americans adopted the electoral system because it seemed less corrupt. But with election costs skyrocketing, interested donors have more opportunity to try to create a favorable judicial climate for themselves.

Springgate is right. The questions raised by the Supreme Court hearing of Caperton v. Massey Coal are complex. Courts clogged by appeals from “unfriendly” judges. Judges to recuse themselves when the backlogged system needs more, not fewer, judges. And serious questions about the ethics of electing judges in the first place.

Still. Someone contributes over 60 percent to a judge’s electoral campaign, with millions of dollars at stake in a pending appeal? Come on.

I still say it’s a no-brainer.