Tainted Justice

That is what the Supreme Court is going to decide in a case it heard this week. The case, Caperton v. A.T. Massey, raises the legal claim that Americans have a due-process right to a judicial system untainted by the appearance or likelihood of bias.

Some background. Hugh Caperton ran a small mining company in West Virginia. In the late 1990s, A.T. Massey, the fourth largest coal company started allegedly unfairly pushing Caperton out of business. In 2002, a West Virginia jury determined that the A.T. Massey Coal Co. had fraudulently forced competitor Caperton into bankruptcy.

But instead of paying off, CEO of A.T. Massey, Don Blankenship, took another course. Concerned about his odds on appeal, Blankenship spent $3 million of his own money to take out sitting Justice Warren McGraw, who ruled against Massey, by backing his opponent in a 2004 judicial election. This funding represented 60 percent of the total funding of a 527 group called (what else?) "And for the Sake of the Kids." And not surprisingly, the newly elected Chief Justice Benjamin then voted 3-2 to reverse the verdict against Massey. He was asked to recuse himself from hearing the case, but refused on two occasions.

In all frankness, this is a difficult case for the Supreme Court. Why? Well, Caperton's argument is that the appearance of taint of justice is enough for a judge to have to recuse himself. How can the court ascertain that? For example, how much donation is enough to taint the fairness of the justice system? $1,000? $1,000,000? Somewhere in the middle?

This case has created interesting bedfellows, that don't follow the classic political lines. Ted Olsen, Bush's attorney in Bush v. Gore, is Caperton's attorney. However, as Olson attempts to wax lyrical about the "constitutional right to a fair tribunal," Justice Antonin Scalia, the most conservative justice, cuts him off to ask when the court has ever promised anything like that. Olson replied "...that judge has just been put on the bench during the pendency of the trial of the case by his opponent's contribution of $3 million ...". Scalia responded that Olson has it all wrong. When people contribute millions of their own dollars to judicial-election campaigns, it's because "they want me to be a good judge ... and I'm showing my gratitude by being a good judge."

What nonsense. I am sorry, on this I have to completely disagree with what appears to be the conservative block of Scalia, Thomas, Alito, and Roberts. They believe that the appearance of injustice is enough. I would argue that appearance or faith in the justice system is all we have.

This will be difficult to settle. Where do we draw the line? If a judge gets a few hundred dollars from a person, is that enough to recuse themselves? Of course, that is unreasonable, but where to draw the line is the real question. But this is why we have a Supreme Court. Former Justice Sandra Day O'Connor has been a vocal advocate for judicial fairness, and was in the hearing this week. There are judges, both conservative and liberal, that fall on both sides of this argument. But I think that the Court must take an unusual step, and be proactive in this case. It doesn't like to do that normally. But the faith in the institution of fair hearings in this country is at stake.