WASHINGTON – Following a spirited argument, the Supreme Court appears ready to issue a ruling setting additional guidelines for when judges must recuse themselves from certain cases.
Based on his comments Tuesday, the Court's ruling is likely to have Justice Anthony Kennedy in the majority in this closely-watched case about the "probability of bias" on the part of state judges. The votes of the other Supreme Court justices will almost certainly split along the common fault lines seen in so many recent 5-4 decisions. Thus putting Kennedy, who is often the Court's swing vote, again in position to decide this case.
The oral arguments examined West Virginia Supreme Court Chief Justice Brent Benjamin’s decision not to recuse himself from a $50 million lawsuit involving the man who spent millions of dollars to get him on the bench. But the case also spotlighted what lawyer Ted Olson called the "spiraling out of control" nature of state-level judicial elections.
The losing side in the West Virginia mining case argued that Benjamin should have recused himself for his "probability of bias" in a case involving Massey Coal. Its CEO spent $3 million in ads to help Benjamin's cause. Soon after his victory, Benjamin turned down repeated requests to step down from the mining case. He ultimately cast the deciding vote in Massey's favor.
Chief Justice John Roberts called the "probability of bias" argument presented by lawyer Olson a "loose term" that lacked definition. Justice John Paul Stevens took an opposing view likening the bias presented in this case to former Justice Potter Stewart's famous definition about obscenity "I know it when I see it."
Kennedy initially expressed the same concerns as Roberts but later in the argument declared that he was inclined to support a ruling broadening the rules of judicial recusals. "[I]t does seem to me that the appearance standard has — has much to recommend it...it's more objective," Kennedy said.
The Court has previously only recognized the need for recusals when judges have a personal financial interest or some other closely held personal connection to a case.
Both sides hotly debated the extent Benjamin or any other similarly situated judge would be impartial. "Judges are clothed with a presumption of impartiality. There has to be something that overcomes that presumption. And let me say that, I ask the Court to ask yourselves if you were in Justice Benjamin's situation, do you really think you would be incapable of rendering an impartial decision in a case involving Massey," asked Andrew Frey the lawyer representing the losing mining companies.
In response, Olson said that wasn't the appropriate question for the judges to ask themselves but rather "[i]f this was going to be the judge in your case, would you think it would be fair and would it be a fair tribunal if the judge in your case was selected with a $3 million subsidy by your opponent?"
The case also highlights the concerns some have in curbing the influence of money in state judicial races. 39 states hold elections to determine who presides over their courtrooms. Olson called it a "financial arms race." But an opinion in this case, no matter how it is resolved, will not address this larger issue. Frey strongly told the Court that it was best to the states figure out for themselves how to seat judges and that it would be imprudent for the Supreme Court to involve itself in the matter.
This case closely resembles the plotline authored by novelist John Grisham in his 2008 book The Appeal. An opinion in Caperton v. A.T. Massey Coal Company is expected by the end of June.