Ruling on 'Probable Bias' Spotlights Political Reality
By NATHAN KOPPEL/ Wall Street JournalJune 10, 2009
The U.S. Supreme Court's decision this week calling for judges to stay out of cases involving big political donors confronts the growing role of money in the U.S. judicial system.
Political donations to judicial candidates at the highest state courts have soared in recent years, creating concerns that money is eroding public confidence in the system.
Critics say states should enact such reforms as requiring taxpayers to underwrite judicial races. Another possible reform is to scrap contested elections in favor of appointing judges to the bench, which is the practice of some states.
The Nevada legislature recently approved a 2010 ballot initiative that will ask voters to adopt an appointment system for judges. Legislation is pending in Wisconsin to allow as much as $1.2 million in public financing for state supreme court candidates.
Monday's high court ruling involved allegations by Hugh Caperton, a mining executive who claimed he was run out of business by Massey Energy Co. His case ended up before a supreme court judge in West Virginia who benefited from $3 million in campaign contributions from a Massey executive.
The Supreme Court held that judges should disqualify themselves when a party's campaign contributions are large enough to raise "the probability of actual bias." Monday's decision didn't specify a dollar amount for judges to consider.
"The massive amount of money flowing into judicial races certainly impacts the perception of whether courts can be fair," said Sue Bell Cobb, chief justice of the Alabama Supreme Court.
Judge Cobb was elected to her current post in a 2006 race in which she and her opponent raised more than $7.5 million -- one of the highest campaign totals in any state supreme court race, she said. Campaign contributions have not skewed results in Alabama, she said, but it has eroded trust in the court.
 | From 1999 to 2008, state supreme court candidates raised $200 million nationwide, more than double the amount they raised in the previous nine years, according to Justice at Stake, a Washington, D.C. organization that opposes campaign spending in judicial races. Much of that funding comes from constituencies with vested interests in cases before the courts, including business organizations and plaintiffs' lawyers. Last year in Ohio, where two supreme court seats were up for grabs, insurance companies and corporate-defense law firms were among the largest contributors to the victorious Republican candidates, while labor unions gave heavily to the Democratic candidates, according to a study by Ohio Citizen Action, a government watchdog group. |
"We don't have a problem of actual bias, but there is a problem of perceived bias," said Chris Davey, a spokesman for Ohio State Supreme Court Chief Justice Thomas Moyer. Mr. Moyer has long favored a system of appointing state supreme court judges and then later requiring them to stand for a retention election, Mr. Davey said.
The six major-party candidates for the Texas Supreme Court in elections last year received $2.3 million combined from lawyers and parties who had cases in the court from 2005 to 2008, according to a report by Texans for Public Justice, a nonprofit organization that tracks campaign contributions. The organization studied campaign contributions from January 2007 to June 2008.
Wallace Jefferson, chief justice of the all-Republican Texas Supreme Court, said, "Retention elections are far less costly than partisan elections and that would get judges out of th e business of soliciting huge amounts form lawyers and litigants."
