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The New Standard is "The Probability of Bias"

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Message Carl Bernofsky
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I was entirely wrong in my prediction of how the U.S. Supreme Court would rule in the case of Caperton v. Massey Coal Co., which I wrote about on May 17, 2009 (click here).

The case focused on the disqualification of West Virginia Supreme Court Justice Brent D. Benjamin, who was elected to his seat with the aid of more than $3 million in campaign contributions from the CEO of Massey Energy, the parent company of Massey Coal Co. Justice Benjamin, who refused to disqualify himself from the case, subsequently cast the pivotal vote in a 3-to-2 majority to dismiss a $50 million verdict against Massey, claiming that his judgment was based solely on the merits.

Caperton appealed the case to the Supreme Court.

Historically, judges have had ultimate discretion over whether to disqualify themselves when there is an apparent conflict of interest, and they often rule in cases that involve a party who has helped to finance his or her election. I reasoned that Justice Benjamin did not engage in an activity that differed in principle from the conduct of countless judges who have taken campaign contributions from parties who later appeared before them as litigants. Only the degree of the apparent conflict of interest differentiated Benjamin from the others, and I predicted that the high court would find it impossible to define limitations to a principle that it basically supports.

Nevertheless, five of the justices found that the extreme facts of the case raised the probability of actual bias, and ruled that Justice Benjamin should have disqualified himself in order to meet the 14th Amendment's guarantee of "due process of law." The justices may have been influenced, in part, by pressure exerted by numerous groups that submitted amicus briefs that sided with Caperton.

Four of the justices strongly dissented and predicted that the decision to favor Caperton could lead to the court system being flooded with challenges by litigants claiming an appearance of bias by judges. Chief Justice John Roberts wrote that, with its standard of probable bias, the decision of the majority provides no clear guidance to judges. "How much money is too much money?" he asked.

Justice Antonin Scalia added, "...the principal consequence of today's decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 states that elect their judges."

The outcome of the Caperton case will surely boost public awareness to the influence of campaign contributions on judicial outcome. It will also provide additional justification for the legal establishment to use in its campaign to replace the democratic process of judicial elections with an appointive process that would allow bar associations to select their own candidates for judgeships.

This consequence of the Supreme Court's ruling in the Caperton case is a prediction I still stand by.
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Carl Bernofsky, Ph.D., is a former professor of biochemistry at Tulane University and Mayo Graduate School of Medicine. He is the author or co-author of numerous scientific publications and was the recipient of major awards from national (more...)

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