Judicial impartiality

The U.S. Supreme Court on Monday ruled that large allocations of campaign cash that benefit a judicial candidate can create an unconstitutional threat to a fair trial.

In some "extreme" cases, that risk of bias violates the constitutional guarantee of due process, the court said.

As far as it goes, the statement is obvious on its face. The devil is in the details, though, and the ruling unfortunately fails to define at what level recusal is mandatory -- leaving the field wide open for all kinds of new court challenges as creative lawyers put "judge shopping" on steroids.

In the case at hand, the perception of favoritism didn't even arise from direct campaign contributions to the judge, but rather from an "independent, third party" effort launched against a judge's electoral opponent.

A five-member majority of the court decided that West Virginia Supreme Court Justice Brent Benjamin erred in participating in a case overturning a $50 million verdict against a company headed by a man who spent $3 million -- albeit indirectly -- to benefit the justice's election.

"Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," wrote Justice Anthony M. Kennedy.

But the ruling will doubtless be used to seek the removal of judges who have received far more minor campaign help, as well as to advance proposals to end or limit the direct popular election of state judges, including in Nevada.

The Justice at Stake Campaign, an advocacy coalition, immediately noted that state Supreme Court candidates -- 39 states elect judges -- raised almost $168 million from 2000 to 2007, nearly twice the amount raised during the 1990s.

"It's a big win and a signal that the U.S. Supreme Court is keeping an eye on how judicial elections are changing," declared Bert Brandenburg, executive director of Justice at Stake.

The court's 5-4 decision added the risk of bias to two other standards the court has set for when judges should recuse themselves from a case: when they have a financial interest in the case or when their previous involvement in a case makes it difficult for them to be impartial arbiters.

Justice Kennedy sided with the court's most consistent liberals -- Justices Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens and David Souter -- and again played a pivotal role in deciding a controversial case.

He said a "serious risk of actual bias" occurs when a party in the litigation "had a significant and disproportionate influence" in electing a judge "when the case was pending or imminent."

But Justice Kennedy then proceeded to downplay the impact of the decision, arguing state codes of judicial conduct already provide judges with guidelines on recusal, and that "most disputes over disqualification will be resolved without resort to the Constitution."

But the dissenting conservative justices said the decision will cause a flood of lawsuits by losing litigants and do "far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case," in the words of Chief Justice John G. Roberts Jr., who criticized the "inherently boundless nature" of the court's decision, using seven pages of his dissent to list 40 questions that he said the decision failed to answer.

"Today's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)," Chief Justice Roberts wrote, in a dissent joined by Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

The question is how the court -- in a political environment where the very direct election of state judges could be at stake -- could issue such a ruling, but fail to provide more detailed and substantive guidance to the lower courts.