Bench Memos

A Solution in Search of a Problem

The New York Times has once again editorialized against judicial elections. This editorial is particularly concerned by the fact that state supreme courts are not adopting the recusal standards that Justice at Stake and a number of other Soros-funded organizations have been lobbying for. According to the Times:

At a time when torrents of special interest campaign spending is threatening the appearance and reality of judicial impartiality, the ruling in Caperton v. Massey drove home the need for states to adopt more rigorous rules for recusal. The message has largely gone unheeded.

Caperton v. Massey, you might recall, is the U.S. Supreme Court case in which Justice Kennedy, writing for a 5-4 majority, decided that due process required a supreme court justice to recuse himself in a case involving a company whose owner had spent millions of dollars on independent expenditures to defeat the judge’s opponent. As much as the Left likes to use this case, it doesn’t even support their claims. As Professor Chris Bonneau has explained:

There is no proof that elected judges are for sale. Critics of judicial elections frequently point to Caperton v. Massey as an example of how judges can be “bought.” This West Virginia case, in which a judge supported by the Massey coal company won election and then did not recuse himself regarding the company’s appeal of a $50 million verdict, includes several facts that are routinely ignored. A news release from the West Virginia Court of Appeals noted that Chief Justice Brent Benjamin — the judge who allegedly benefited from millions of dollars in campaign ads paid for by the chief executive of Massey Energy — voted against Massey Energy or its subsidiaries 81.6 percent of the time, including in the Caperton case. These votes “cost” Massey Energy approximately $317 million. In contrast, Massey “benefited” from Benjamin’s votes 18.4 percent of the time, for a total sum of about $53.5 million. So, was Benjamin’s vote “bought”? The numbers are unconvincing. More generally, there is no systematic evidence to date that judges’ votes are influenced by campaign contributions.

The Times and its allies in this effort should consider the possibility theirs is a solution in search of a problem. If they are serious about promoting fair and impartial courts, I would suggest that they focus on a real, documented problem: the capture of judicial systems by special interests in Missouri Plan states.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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