WASHINGTON, D.C. -- The U.S. Supreme Court yesterday struggled with the issue of whether it should establish a standard for determining what amount of campaign contributions require a judge to step aside from a case involving a contributor.
At issue was whether West Virginia Supreme Court Chief Justice Brent Benjamin, who cast the deciding vote in a 3-2 decision throwing out a $50 million judgment a lower court ordered Massey Energy to pay Hugh Caperton, should have recused himself because he benefitted from $3 million in campaign contributions that Massey Chief Executive Officer Don Blankenship made during the 2004 Supreme Court election.
The nine justices questioned lawyers from both sides vigorously, asking what such a standard should be, and when and how it should be applied.
Former U.S. Solicitor General Theodore Olson, who represented Mr. Caperton, argued for a standard based on probability or appearance of bias, saying the justice should step aside if a reasonable person would conclude a judge could not be fair because of the campaign contributions.
Andrew Frey, Massey's attorney, argued the appearance of bias should never raise the issue of whether a person could get a fair trial, saying it would clog up the courts with motions to dismiss judges from cases.
His argument resonated with some members of the court. "The appearance standard is wonderfully ratchetable," Justice Antonin Scalia said.
But others saw merit in the argument. Justice Anthony Kennedy said the appearance standard "has much to recommend it. Of course, it has to be controlled. It has to be precise," he said.
Mr. Caperton, the owner of Harman Development Corp., sued a Massey affiliate in 1998 for fraud, saying the nation's fourth largest coal producer drove him out of business.
A jury awarded him $50 million in damages in 2002. Massey appealed to the West Virginia Supreme Court, which last year overturned the verdict.
Before the ruling, Mr. Caperton's attorney asked Chief Justice Benjamin to recuse himself because of the $3 million that Mr. Blankenship spent on the 2004 court election. Justice Benjamin declined.
Mr. Blankenship spent most of that money on a campaign to defeat Chief Justice Benjamin's opponent.
The case took 11 years to reach the nation's highest court. Over that time, former justices, the American Bar Association and other professional organizations, businesses and court reformers have become concerned that the growing sums being spent on judicial elections are undermining the integrity of the court systems.
Mr. Caperton's case drew broad interest from experts on both sides of the issue. More than a dozen friend of the court briefs were filed in the case, both by those who fear that requiring judges to withdraw from cases involving campaign contributions would trigger a wave of recusal requests and paralyze courts as well as by those who believe contributions that create the appearance of bias should require a judge to step aside.
In their brief, Massey attorneys argued that Chief Justice Benjamin did not solicit the contributions and that he has voted against Massey in at least five other cases, including one involving a $243 million verdict against the coal producer.
"Justice Benjamin was not 'probably biased,'" in Massey's favor, Mr. Frey wrote.
Mr. Caperton's attorneys said Massey "dismisses the manifest probability that any jurist would have a difficult time being evenhanded in the face of such immense and influential campaign support."
Those who believe Mr. Caperton was denied his right to an unbiased hearing want judges to step aside when contributions, even those not made to a judge's campaign committee, raise doubts about whether a fair trial is possible.
A brief submitted by 27 former state supreme court justices argued for recusal in cases "when there exists a reasonable appearance of partiality or impropriety."
A recent USA Today/Gallup poll showed that 89 percent of those questioned were worried about the effect campaign donations have on judges.
"The system we have in place up to this point does not seem to be working very well," Justice David H. Souter said.
Justices questioned Mr. Olson about what circumstances would trigger the appearance or probability that a judge was biased.
"I need some more specific standards," Justice Kennedy said.
Justice Scalia was more blunt, saying, "We can't run a system on such a vague standard. ... You're giving us nothing to hang on except we're going to have to decide case by case."
Mr. Olson said he expects the court to announce a decision in June.
Len Boselovic can be reached at email@example.com or 412-263-1941.