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Jurists, Business Leaders, Reform Groups Join “Justice for Sale” Case

High Court urged to require West Virginia judge’s recusal in suit involving campaign support.

January 6, 2009

logoFor Immediate Release                                                     

James Sample, Brennan Center for Justice, 212–992–8648
Charles W. Hall, Justice at Stake, 202–588–9454
(further contacts listed below)

High Court Urged to Require Judge’s Recusal in Suit Involving Campaign Supporter

D.C. – An unprecedented array of former state Supreme Court justices, business leaders and civic reform groups has called on the U.S. Supreme Court to affirm one of the most basic rights in any system of law: the right to a fair hearing before a neutral arbiter.

The groups filed briefs in Caperton v. Massey, which has emerged as a landmark case over the spiraling role of special-interest spending in judicial elections. The trend has troubled many, including former U.S. Supreme Court Justice Sandra Day O’Connor, and caused some to question whether justice is now “for sale.”

Separate briefs supporting the Petitioners were filed by:

  • 27 former state Supreme Court chief justices and justices;
  • The Committee for Economic Development, Intel Corp., Lockheed Martin Corp., Pepsico, Wal-Mart Stores Inc., and Transparency International, and others.
  • The American Bar Association;
  • The Center for Public Accountability and Zicklin Center for Business Ethics Research at the Wharton School;
  • The Brennan Center for Justice, Campaign Legal Center and Reform Institute
  • The American Association for Justice;
  • The American Academy of Appellate Lawyers;
  • The National Association of Criminal Defense Lawyers;
  • The Justice at Stake Campaign (in a brief including 27 civic reform groups).

Theodore B. Olson, former Solicitor General of the United States and counsel for the petitioners, argues that the Constitution’s due-process requirement requires West Virginia Justice Brent D. Benjamin to recuse himself from a lawsuit involving Don Blankenship, a coal executive who spent $3 million to elect him.

“The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today,” Olson said of the case. “A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”

The Conference of Chief Justices, the national organization that represents the top judges of the 50 states and the U.S. territories, filed a brief as a friend of the Court. That brief does not support either party but “sets forth some of the practical considerations that may be relevant in resolving a constitutional challenge involving campaign support.” The brief states: “The Conference takes the position that, under certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings.”

The following are excerpts from amicus briefs filed in support of the Petitioners. Full copies of the briefs, as they become available, are being posted at the Brennan Center’s Caperton v. Massey resource page (, which has additional background on the case.

Brief from 27 former chief justices and justices:

The 27 former justices, from 19 states, are: Alabama, Chief Justice C.C. Torbert; Arkansas, Justice David Newbern; Georgia, Justice Norman Fletcher; Idaho, Chief Justice Charles McDevitt, Justice Byron Johnson; Louisiana, Justice Harry T. Lemmon; Michigan, Chief Justice Conrad L. Mallett Jr.; Minnesota, Chief Justice A.M. Keith, Chief Justice Kathleen Blatz; Chief Justice Russell Anderson; Missouri, Chief Justice Edward D. Robertson Jr.; Montana, Chief Justice Jean A. Turnage, Justice John Sheehy; Nevada, Chief Justice Robert Rose; North Carolina, Chief Justice James Exum, Chief Justice I. Beverly Lake Jr.;  North Dakota, Justice Herbert L. Meschke, Justice Beryl Levine; Ohio, Justice Herbert R. Brown; Oregon, Chief Justice Edwin J. Peterson; Pennsylvania, Chief Justice Emeritus John P. Flaherty; Texas, Justice Raul Gonzalez; Washington: Chief Justice Robert Utter, Chief Justice Vernon Pearson, Chief Justice Richard Guy; West Virginia, Chief Justice Richard Neely; Wisconsin, Justice Louis Butler.

“Substantial financial support of a judicial candidate … can influence a judge’s future decisions, both consciously and unconsciously.”

The former justices “uniformly believe that the participation of Justice Benjamin in this case created an appearance of impropriety. All Amici participating in this brief would have recused if they had benefited from the level and proportion of independent expenditures by the CEO of a party to a case pending before the court.”

    Further information on brief by former justices: Charles Wiggins, 206–780–5033;  J. Mark White,  205–323–1888.

    Committee for Economic Development/Intel Corp./Lockheed Martin Corp./ Pepsico/Wal-Mart Stores Inc./Transparency International, et al:

    “Public confidence in judicial integrity and in the evenhandedness of the judicial system is a critical element of America’s stable, prosperous business climate.” Justice Benjamin’s refusal to recuse himself “created an appearance of bias that would diminish the integrity of the judicial process in the eyes of any reasonable person.”

    “In the face of ever more expensive and politicized judicial elections,” a U.S. Supreme Court decision to require Justice Benjamin’s recusal “would signal to businesses and the general public that judicial decisions cannot be bought and sold.”

      Further information on brief by CED, et al: Mike Petro, Committee for Economic Development, 202–296–5860, ext. 15.

      Center for Political Accountability/Zicklin Center for Business Ethics Research at the Wharton School:

      “The escalation of judicial campaign spending traps business leaders into a classic “prisoner’s dilemma.” For ethical and financial reasons, most corporations would prefer to avoid spending money … for a seat on a court where it has a matter pending. … In today’s election environment, however, a corporation must consider the likelihood that its opponent in high-stakes litigation may actively support one or more of the judges that will hear its case.”

      “Mandatory recusal is necessary to stanch this campaign spending arms race and maintain the integrity of the judicial system. The economy and the rule of law cannot thrive without robust safeguards of judicial impartiality.”

        Further information on CPA/Zicklin brief: Bruce F. Freed, Executive Director, Center for Political Accountability, 301–233–3621
        Brennan Center for Justice/Campaign Legal Center/Reform Institute):

        “A decision lacking an unequivocal statement that the facts of this case, taken together, fall beneath the floor of due process, will unfortunately – but inevitably – be interpreted as license by future actors in the shoes of Mr. Blankenship and Justice Benjamin. The resulting race to the bottom will severely corrode both the quality and perception of American justice.”

          Further information on Brennan/Campaign Legal Center/Reform Institute brief: James Sample, Brennan Center, 212–992–8648.

          American Bar Association

          “The integrity of the judicial process requires that judges avoid both actual bias and the appearance of bias. Few actions jeopardize public trust in the judicial process more than a judge’s failure to recuse in a case brought by or against a substantial contributor to the judge’s election campaign.”
            The Supreme Court’s “guidance is especially needed today, when increased judicial campaign contributions pose a greater threat than ever to public confidence in the integrity of the judiciary.”

              American Academy of Appellate Lawyers:

               “As long as the states continue to elect judges, contributions to judicial campaigns will remain necessary … Nevertheless, the magnitude of Mr. Blankenship’s contribution to Justice Benjamin’s campaign is so great that it is easy to say it crossed the line of impropriety.”

                American Association for Justice:

                “The record in this case makes plain that the exorbitant financial efforts to influence the election of a judge who would inevitably sit on the appeal of the principal’s pending litigation required that judge’s recusal as a matter of due process.”

                  Counsel: Robert S. Peck, Center for Constitutional Litigation, 202–944–2876

                  National Association of Criminal Defense Lawyers:

                  “Ruling for Petitioners here, even on narrow and fact-specific grounds, will send a much-needed signal that judicial electioneering, though generally valid, may in some particular cases cross a constitutional line and require recusal to ensure the actuality and appearance of an unbiased judge.”

                    Justice at Stake Campaign (with 27 co-signers):

                    “From the English common law through the guarantees of due process in the Fifth and Fourteenth Amendments of the U.S. Constitution, a fair and impartial judiciary has been an indispensable feature of democracy.”
                      “Judicial elections have created a crisis of confidence. National surveys from 2001 and 2004 found that over 70% of Americans believe that campaign contributions have at least some influence on judges’ decisions in the courtroom.”
                        “The facts of this case are extraordinary …A ruling by the court that the facts of even this case do not present a constitutionally significant threat to equal justice would significantly … weaken state reform efforts.”

                          Co-signing the Justice at Stake brief are: American Judicature Society, Appleseed, Common Cause, Constitutional Accountability Center, Institute for the Advancement of the American Legal System, League of Women Voters, National Ad Hoc Advisory Committee on Judicial Campaign Conduct, Alabama Appleseed Center for Law & Justice, Colorado Judicial Institute, Democracy North Carolina, Fund for Modern Courts, Illinois Campaign for Political Reform, Justice for All, League of Women Voters of Michigan, League of Women Voters of Wisconsin Education Fund, Massachusetts Appleseed Center for Law & Justice, Michigan Campaign Finance Network, Missourians for Fair and Impartial Courts, NC Center for Voter Education, Ohio Citizen Action, Pennsylvanians for Modern Courts, Texans for Public Justice, Washington Appellate Lawyers Association, Washington Appleseed, Wisconsin Democracy Campaign, Chicago Appleseed, and Chicago Council of Lawyers.

                          Further information on brief by Justice at Stake, et al: Charlie Hall, Justice at Stake, 202–588–9454