Scalia says the recusal rules apply only to judges who have either a financial stake in the case or personal antipathy toward a party. That's because there is no limiting principle to a rule that requires recusal for any appearance or likelihood of bias. "I was appointed to the bench by Ronald Reagan," he says. "Should I have been any less grateful to Ronald Reagan than—than the judge here was grateful to the person who spent a lot of money in his election?" Scalia is not a big fan of allowing others to act as his conscience. He's got the conscience market cornered.
Justice Anthony Kennedy asks nervously what Olson's standard for bias will be. The high bidders today include the probability/possibility/appearance/likelihood/risk of bias—i.e., a great pile of subjective litigant goo. Kennedy observes that the proposed "unacceptable risk of bias" standard "doesn't give sufficient guidance to the courts to implement this rule." And Justice David Souter wonders whether the courts shouldn't stand back and let the states find their own political fixes to the problems of financing judicial elections.
Olson replies that "the political process to which you refer is spiraling out of control." He describes a "financial arms race in judicial elections" in the 39 states that elect judges. This claim is borne out by data from the Brennan Center showing that in 2000, candidates for state supreme court seats raised $45.6 million—60 percent more than the $28.2 million they raised two years earlier. Olson concludes his argument by reminding the court that "in the Magna Carta, the king promised: 'To no one will we sell justice.' " If the court fails to rein in this judicial arms-race thing, there will soon be a "Judges" tab at Amazon.com.
If Olson is undone for the lack of a limiting principle, Frey is hard-pressed to explain away Justice Benjamin's deaf-dumb-and-blindness in keeping himself in this case. Justice Stevens immediately lights into Frey because the facts of this case are so dreadful. Frey points out that Justice Benjamin didn't know Blankenship, didn't benefit financially from his election contributions, and couldn't have controlled Blankenship's actions. Chief Justice Benjamin, if anything, is a victim of this hateful $3 million campaign gift.
Justice Souter points out that the standard of "appearance of impropriety" is codified in the judicial ethical canons, and Kennedy observes that he sort of likes appearance of impropriety as a standard, because it is neutral and objective. Frey replies that it is not the job of the Constitution's Due Process Clause to protect "the reputation of the judicial system." This prompts Stevens to retort: "You don't think the community's confidence in the way judges behave is an important part of due process?" Frey says no.
It's the kind of no guaranteed to rouse the Sleeping Hamlet in Kennedy, who all but splutters: "But our whole system is designed to ensure confidence in our judgments. … Litigants have an entitlement to that under the Due Process Clause." Come to think of it, this is Justice Kennedy's dream case. There's a huge problem. (Judicial elections are undermining judicial integrity.) There is virtually no precedent or statutory guidance. Someone will have to make some shit up. The court appears split 4-4. And it's all about appearances. Start the presses! The "sweet mystery of judicial integrity" passage practically writes itself!
Frey sums up his theory of the case with this question: "Judges are clothed with a presumption of impartiality. … Ask yourselves if you were in Justice Benjamin's situation, do you really think you would be incapable of rendering an impartial decision in a case involving Massey? Because if the answer to that is no … then there's no justification for saying that Justice Benjamin would." In his rebuttal, Olson turns that analysis on its head. "Instead of the question that my opponent asks, 'Would you be fair?' … ask if this was going to be the judge in your case, would it be a fair tribunal if the judge in your case was selected with a $3 million subsidy by your opponent?"
Now, this is the legal equivalent of saying, "So enough about my bias. What do you think of my bias?" But as theoretical questions go, it has the intended effect. No judge in the world believes herself to be biased. But no judge in the world wants a Justice Brent Benjamin sitting anywhere near her case, either. Ultimately, the high court is going to have to decide whether Caperton is about us or them. Or, more precisely, whether they want to continue to believe in their own irrefutable divinity or create some structures to shore up our belief in their divinity. In the long run, and especially with high-priced judicial elections, it looks as if the credibility of the judiciary requires the latter. But that would mean judges giving up the authority to decide for themselves when they cannot be fair. Which would, in turn, give a whole new, fascinating meaning to the words "judicial humility."