OK, I’ll confess a bias: When I was in high school I dreamed of being a lawyer. I liked the idea of argumentation and found that I think like a lawyer. I was cured of this desire when I joined the debate team at George Mason University. I learned that very little time is actually spent in argumentation: most time is spent in libraries going through endless articles and most argumentation is not finding the best argument but rather in burying your opponent in tons of words (with little regard to efficacy).

In any case I still enjoy following how courts rule on different issues and I confess to a dream of someday meeting NPR’s Nina Totenberg. A few days ago I was listening to NPR about the Supreme Court’s recent decision in the case of Caperton v. Massey. Here are the facts of the case:

• In 1998 Hugh Caperton (President of Harman Coal Company) sued the Massey Energy in West Virginia, claiming they were using fraudulent business practices to run him out of business. In 2002 a jury in Boone County, West Virginia agreed and awarded Caperton the sum of $50 million.
• Not surprisingly, Massey Energy appealed and the case began to wend its way up through the courts. During this time (in 2004) West Virginia Judge Warren McGraw was running for reelection as a judge in the West Virginia State Court of Appeals. Massey’s CEO was Don Blankenship and he began to campaign against Judge McGraw. I’ve been reading articles on this case and I can’t find any previous relationship between Don Blankenship and Judge Warren McGraw.
• In any case, Don Blankenship began to back another candidate, Brent Benjamin, for the office. In fairness, Blankenship had given money to political campaigns before, but the sums were small. With Benjamin running for office, however, he donated $3 million
• The campaign against McGraw turned ugly: a web page called …and for the sake of the kids accused McGraw of voting “to let a child-rapist out of prison, and court records show the plan called for the rapist to work at a local school.” Not surprisingly, Brent Benjamin wins the election and gains a seat on the West Virginia Court of Apppeals.
• Drum roll everyone: the case of Caperton v. Massey came before the court. The lawyers for Hugh Caperton asked Judge Benjamin to recuse himself as his position was due in large part to the generosity of the defendant, Don Blankenship. He refuses.
• Another drum roll: The court reversed the decision by a 3-2 vote with Judge Benjamin voting for the majority.
• Final drum roll: Hugh Caperton continues to appeal, arguing that Judge Benjamin is biased and should have recused himself. Eventually it reaches the Supreme Court who agrees to accept the case.

Now it becomes news. The Supreme Court finds that there is always going to be a fuzzy line with elected judges, but wherever the line falls, this is way beyond it. In the 5-4 majority opinion, Justice Anthony Kennedy ruled that Justice Benjamin should have recused himself: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.” The opinion recognized that there may some fuzziness and there may need to be other rulings but this case was too far over the line.

The minority opinion used what I call the “Pandora’s Box” rational. Chief Justice John Roberts based his opinion on the fear of where this might go. Would Justice Benjamin have to recuse himself if the contributions were smaller? etc.

This clearly will begin an increase in litigation over judicial bias but I don’t necessarily think that’s a bad thing. The election of judges opens the door to all sorts of questions and the fact that it can’t be settled in one case doesn’t mean it isn’t worth doing.