Thirty-nine states in this country elect some or all of their judges. Predictably, judges receive their largest campaign contributions from the lawyers, corporations, and groups that regularly appear before them. All these dollars create the appearance, and sometimes the reality, that justice is for sale. One familiar response is that states should switch to appointing their judges. But states are not about to scrap judicial elections, nor should they necessarily. The problem is not that judges are elected; it is that states insist on treating elected judges as if they are immune to the conflicts of interest that come with running for public office.
West Virginia is a prime example. The state elects its judges, yet provides no public financings for elections, and leaves it up to each judge whether to recuse him- or herself, or bow out of hearing a case. This is a recipe for trouble, as became clear when West Virginia Supreme Court Justice Brent Benjamin refused to step aside in the case of Caperton v. Massey,a $50 million appeal in which the principal contributor to his campaign had a stake. Now the U.S. Supreme Court has been asked to decide whether Justice Benjamin's involvement violates the constitutional right to a fair hearing before an impartial decision maker—the petition to hear the case is on the court's calendar today. The court should take this opportunity to state the obvious: States that elect their judges must regulate the ways in which they campaign and the cases on which they sit.
The facts of Caperton v. Massey are startling, to put it mildly. In 1998, Hugh Caperton filed a lawsuit against Massey Coal in state court in West Virginia over a business deal gone sour. The jury sided with Caperton, and Massey Coal was ordered to pay $50 million in damages. Massey Coal appealed the verdict at the same time that the campaign for seats on the West Virginia Supreme Court was heating up. Don Blankenship, the CEO of Massey Coal, donated $3 million to support Brent Benjamin's bid for election to the high court ("one dollar for every West Virginian," Blankenship boasted—and it's more like $1.66). Blankenship's contribution amounted to 60 percent of the total spent in Benjamin's bid for election. And it paid off when Benjamin won a seat on the court.
Caperton's lawyers filed a motion asking Justice Benjamin to recuse himself. But Justice Benjamin refused, explaining that there was "no reasonable basis" for doubting his impartiality. He then cast the decisive vote to reverse the $50 million verdict against Massey Coal, transforming Blankenship's $3 million from a generous contribution to a very wise investment.
To many legal observers, Caperton v. Massey is the poster child for scrapping judicial elections. The American Bar Association has recommended that states select judges through political appointments rather than popular elections, and many legal experts agree that elections and judging are incompatible. But there are some good reasons to elect state court judges, starting with the fact that state court judges (unlike federal judges) are actually charged with making state law. State courts are "common law courts," meaning that the judges in those courts can shape the rules that govern disputes over contracts, torts, and property, at least when state legislatures have not passed legislation in those areas. As with any other lawmaking body, it makes sense to ensure that the state judiciary is accountable to the people subject to those laws. In any case, the many states that have elected their judges for centuries are not about to abandon that method because the ABA tells them to.