Ever since spending exploded on state supreme court elections in 2000, one of the most urgent debates has involved judicial recusal—whether and when elected judges should step aside from cases involving campaign supporters. No case crystallized that debate more starkly than Caperton v. Massey.
On Friday, the West Virginia justice at the center of that case, Brent D. Benjamin, forcefully defended his role in hearing a case involving the company of a coal executive who spent $3 million to help put Benjamin on the state’s high court. He said that despite the expenditures, he had no ties to Massey Coal Co., or its chief executive, Don Blankenship, and therefore was able to hear the case impartially.
Speaking at the American Bar Association’s annual meeting in Chicago, Justice Benjamin said his overall record showed no favoritism toward Massey Coal Co. “If you’re talking about bias, my batting average over four years was that my decisions were 80 percent against Massey. … I was told during the campaign that Don Blankenship didn’t think too highly of me. That’s probably even more true now.”
Justice Benjamin took part in a panel called “The Changing Landscape of Judicial Disqualification,” sponsored by the ABA Standing Committee on Judicial Independence. He was joined by state supreme court justices Mark Martin of North Carolina, Carol Hunstein of Georgia, and Peggy Quince of Florida, who is facing a heated retention election challenge this year.
Recusal has been fiercely debated in recent years within the ABA, and in the larger legal community. In 2009, the U.S. Supreme Court disqualified Benjamin. By a 5-4 vote, the court said Blankenship’s independent expenditures in Benjamin’s 2004 election campaign posed a “serious risk of actual bias.” Benjamin cast the deciding vote to overturn a $50 million jury award against Massey.
In 2011, the ABA House of Delegates approved a resolution urging states to adopt tougher rules involving elected judges. And following Friday’s panel, a roundtable was held to discuss proposed changes to the ABA model code of judicial ethics that would provide guidance on how to enact recusal rules.
A full report on the two events is contained in this ABA Journal article. But an expanded look at Benjamin’s comments is worthwhile. He jokingly acknowledged his notoriety in the case, assuring people in the back of the audience that “I don’t have horns.”
Speaking first, Justice Benjamin noted that Blankenship’s money was spent independently of his campaign, saying it was impossible for judicial candidates to control the actions of parties outside their campaigns.
“What the Caperton decision has done is bring judicial elections and selection to the forefront. … Caperton opens a door called perception. Before, judges could decide if they were objective. Now we have to be concerned with the independent actions of third parties, because of public perceptions. Unfortunately, Caperton did not draw any bright lines. Caperton left it to us to decide” whether recusal is warranted.
As noted in a 2011 analysis by Justice at Stake and the Brennan Center for Justice, states have been slow to strengthen recusal rules involving elected judges since the U.S. Supreme Court decision. In the last year, Tennessee’s and Georgia’s supreme courts have approved rules to make campaign expenditures a possible cause of judicial disqualification.
His own case aside, Benjamin expressed some openness to new approaches to recusal. He noted that West Virginia’s court is considering rules changes that would require attorneys to disclose any information to opposing parties that might be cause for a judge’s recusal, and in several scenarios posed by moderator Bob Peck (a member of the Justice at Stake board), he suggested that recusal or disclosure of information by a judge might be appropriate.
Benjamin also suggested that judges gradually would get more used to motions questioning their objectivity, making recusal less controversial over time. “As recusal becomes more commonplace, that tends to lessen any anger or apprehension a judge might have. I think that’s a good thing.”
Note: the ABA site on Sunday posted this further report on Justice Benjamin’s comments.