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CANON 5:  A judge or judicial candidate shall refrain from inappropriate political activity.

CANON 2:  A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
-- Model Code of Judicial Conduct, 2004 Ed.

To Recuse or Not to Recuse:

Is That the Real Question?
Seizing upon examples of outrageous abuse of judicial independence to make its case for appointing judges, the legal establishment, led by the American Bar Association, has been attempting to undermine public confidence in the democratic process by which judges are elected.  Its latest victory in the campaign to select its own was the successful lobbying of the U.S. Supreme Court [see PDF] to hear the case of Caperton et al. v. Massey Coal Co., which focuses on the disqualification of West Virginia Supreme Court Justice Brent D. Benjamin, who was elected to his seat with the aid of more than $3 million in campaign contributions from the CEO of Massey Energy, the parent company of Massey Coal Co.  Benjamin, who refused to disqualify himself from the case, subsequently cast the pivotal vote in a 3-to-2 majority to dismiss a $50 million verdict against Massey and claimed that his judgment was based solely on the merits.

In large measure, the U.S. Supreme Court accepted the Caperton case to help publicize the influence of campaign contributions on judicial outcomes.  Nevertheless, the high court is unlikely to remand the case back to the lower court to be reheard by another judge who did not have such an apparent conflict of interest.  Invoking authority that is nowhere specified in the Constitution, judges have granted themselves nearly unfettered independence, including the discretion to disqualify themselves, and they are not likely to take any action that would curtail this self-conferred power.  Justice Benjamin did not engage in an activity that differs in principle from the conduct of countless judges who have taken campaign contributions from parties who later appeared before them as litigants.  Only the degree of the apparent conflict of interest differentiates Benjamin from the others, and the high court will likely find it impossible to define limitations to a principle that it supports.

The setting of judicial limitations is the responsibility of the Legislative Branch, which thus far has not been enthusiastic about imposing (or enforcing) restrictions on the Judicial Branch despite the fact that this function is its constitutional responsibility.  Could it be that Congress has been derelict in this duty because so many of its members are also connected with bar associations?

When Should Judges Step Aside?  Justices Weigh Case
March 3, 2009

Concerned about dwindling confidence in the impartiality of judges, the U.S. Supreme Court leaned Tuesday toward forcing elected judges to step aside from cases that would raise an appearance of bias if they took part.

"Our whole system is designed to ensure confidence in our judgments," said Justice Anthony Kennedy, often the crucial vote on the divided court. Large campaign contributions in judicial elections are undermining faith in judges, several justices said.

During lively arguments in a closely watched case from West Virginia, the court's four liberal justices and Kennedy all expressed support for a ruling that the Constitution's guarantee of a fair trial could require judges not to participate in a case in which there was a likelihood of bias.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin at the same time his company was appealing a verdict, which now totals $82.7 million with interest. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.

Even as the high court struggled to find the right standard that would trigger recusal, the term for a decision to step aside, Justice John Paul Stevens indicated that the facts made the decision easy in Benjamin's case.

"We have never confronted a case as extreme as this before," Stevens said, invoking former colleague Potter Stewart's line about pornography. "This fits the standard that Potter Stewart articulated when he said 'I know it when I see it.'"

Arguing strenuously against that view were Chief Justice John Roberts and Justice Antonin Scalia.

Former Solicitor General Theodore Olson was three sentences into his argument Tuesday representing the other party in the Massey lawsuit, Harman Mining Co., and its president, Hugh Caperton, when Scalia cut in.

The Constitution's right to a fair trial, Olson said, includes "a guarantee against even the probability of an unfair tribunal."

"Who says?" Scalia interjected.

Scalia wrote at length five years ago to explain why he would participate in a case involving then-Vice President Dick Cheney, rejecting calls that he step aside because the two had gone duck hunting together. "My recusal is required if ... my impartiality might reasonably be questioned," Scalia said then, dismissing the possibility because he spent little time with Cheney on their trip to Louisiana.

Federal judges are guided by a law that leaves recusals up to them, just as Benjamin made his decision on his own. Financial conflicts leave no room for discretion; judges can't sit on a case involving a company in which they own shares, for example.

Scalia said the court should not invoke the Constitution when there is no actual bias — a financial interest, say — requiring a judge to get off a case.

"We're being urged to adopt out of nowhere a new standard of probability of bias. It's not in the Constitution," Scalia said.

Financial holdings in a company appearing before the court are the most frequent reasons that cause justices to stay out of cases. Roberts and Justices Samuel Alito and Stephen Breyer have had to sit out cases in recent terms because of their investments.

The court's decision could have widespread significance. Judges are elected in 39 states, and candidates for the highest state courts have raised more than $168 million since 2000, according to Justice at Stake, which tracks campaign spending in judicial elections.

The Conference of Chief Justices, representing the top judges in every state, set out seven factors for the Supreme Court to consider, include the size of the contribution and its timing.

Andrew Frey, a veteran Supreme Court advocate who represented Massey, asked the justices to put themselves in Benjamin's shoes in an argument that also noted that justices decide for themselves whether to participate in cases.

"Do you really think you'd be incapable of rendering an unbiased decision?" Frey asked.

The highly experienced Olson said Frey posed the wrong question. The justices should consider whether they would want to be judged by someone who was "selected with a $3 million subsidy by your opponent," Olson said.

Olson argued that several factors combine to create an "overwhelming probability" that Benjamin would not be impartial, including the size of the campaign support and the fact that it represented more than half the money spent on his behalf. The money mostly went to an independent group that ran television ads against Benjamin's opponent.

Massey rejects assertions that Benjamin owed a debt of gratitude to chief executive, Don Blankenship, or that Benjamin displayed any bias in his ruling. Benjamin has ruled against Massey at least four times, including in a unanimous refusal to hear the company's appeal of a $260 million judgment won in another contract dispute.

Former judges and interest groups on both sides of the debate over campaign contributions have weighed in on the dispute. Wal-Mart and Pepsico were part of a brief of businesses asking for a ruling that Benjamin should have removed himself from the Massey case. Alabama, Colorado, Delaware, Florida, Louisiana, Michigan and Utah urged the justices to let the states work out their own rules.

A decision is expected before July.  The case is Caperton v. Massey Coal Co., 08-22.  Oral arguments were heard March 3, 2009 [PDF].

Copyright 2009, Associated Press

Note: On June 8, 2009, in a surprising 5-4 decision, the Supreme Court ruled in favor of Caperton and against Massey [PDF], leading some observers to predict a flood of new appeals from litigants claiming a biased judge.  The case was remanded to the West Virginia Supreme Court to be reheard, this time without Chief Justice Brent Benjamin.  Four of the five justices were new but nevertheless ruled 4-1 in favor of Massey and against Caperton.  In a dissenting opinion, Justice Margaret L. Workman issued a scathing indictment of her fellow justices [PDF].  Hugh Caperton has planned another appeal to the U.S. Supreme Court, this time for a consideration of his case on the merits.

“I deem it indispensable to the continuance of this government, that they [judges] should be submitted to some practical and impartial control; and that this, to be imparted, must be compounded of a mixture of State and Federal authorities.  It is not enough that honest men are appointed Judges.  All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence.”
From: "The Writings of Thomas Jefferson ...", Andrew A. Lipscomb, Editor, Vol. 1, p. 121,
Thomas Jefferson Memorial Association, Washington, D.C., 1904.
http://www.questia.com/PM.qst?a=o&d=91997642, accessed 04/04/09.

The remedy to unbridled judicial power and its inevitable abuses is to hold judges accountable for improper and unlawful conduct through citizen-controlled means that are independent of the judiciary, as described elsewhere on Tulanelink.  The Constitution empowers Congress to regulate the courts, but Congress has proven to be an unwilling taskmaster, and it has permitted the judiciary to usurp power sufficient to keep the scales of justice from ever attaining a balance.

Calls from the public for greater accountability have been treated with disdain by the judiciary which resists any change that would curtail the nearly unlimited power that judges enjoy over litigating parties.  However, the extent of citizen distress over arbitrary abuses of judicial discretion has made inevitable a "pitchfork rebellion" intent on restoring the balance of power to the people, where it rightfully belongs.

Reform movements modeled on the J.A.I.L. initiative have gained and then lost momentum in California, Idaho, South Dakota, Florida and Minnesota where they have been opposed by bar associations and big business, misrepresented in the press, and suppressed by government entities with instances of law enforcement participation.   Clearly, the "Powers That Be" fear meaningful judicial reform and stand ready to mobilize considerable resources to defend their position.

Article from: The Associated Press, March 3, 2009, http://abcnews.go.com/Politics/wireStory?id=6995143 and reprinted by National Public Radio, http://www.npr.org/templates/story/story.php?storyId=101368723, accessed 03/03/09.  Audio clip taken from NPR Morning Edition, "W.Va. Case Tests When Judges Should Step Aside," http://www.npr.org/templates/player/mediaPlayer.html?action=1&t=1&islist=false&id=101368723, accessed 03/03/09.  Reproduced in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.










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