The Supreme Court shouldn’t be judging judges

When Brent Benjamin ran for chief justice of the West Virginia Supreme Court in 2004, the nation’s fourth-largest coal company donated $3 million to his successful campaign -- more than all his other contributors combined. Two years later, the company, Massey Energy, came before Benjamin’s court to appeal a $50-million judgment it had been ordered to pay. Benjamin cast the deciding vote in a 3-2 decision to overturn the award.

Now the U.S. Supreme Court has agreed to examine Benjamin’s decision not to recuse himself from the case, and the facts in Caperton vs. Massey Energy appear damning. But even damning facts can make bad law. The court should resist the temptation this case poses to make federal judges the arbiters of state court ethics. To do so would gravely undermine the sovereignty of states, weaken judicial reforms and even threaten federal judges’ own freedom from political interference.

Thirty-nine states, including California, elect some judges, with 87% of the nation’s state judges facing some kind of election. Yet judges, both elected and appointed, enjoy a “presumption of impartiality” stemming from common law. With narrow exceptions, such as when a judge has a direct financial interest in the case before him, the law assumes his or her fairness and grants discretion over recusal decisions. In Caperton, the court is being asked to decide whether elected judges, who often depend on contributions in their campaigns, should have the same discretion as appointed judges in deciding when they must recuse themselves.

The question of who should judge judicial behavior has puzzled political philosophers for centuries. Judges must be both impartial and accountable, and these requirements are in inevitable tension. There is a worry that elected judges may decide cases with the next election in mind. Indeed, John Grisham’s 2008 legal thriller, “The Appeal,” is a passionate diatribe against judicial elections. However, most appointed judges, especially those who enjoy life tenure, are accountable to no one, and some have a bad habit of infusing judging with policy preferences. Both systems subject judges to ethical temptations, but both rely on judges to decide cases fairly and to be more than politicians. A great virtue of our federal system is that it gives states freedom to tackle this difficult issue in different ways.

For the Supreme Court to give federal courts oversight of the ethical choices of elected state judges, as it could decide to do in this case, would run counter to our federalist tradition, which recognizes and even cherishes the existence of states as distinct and separate sovereigns, supreme in their sphere. It would declare that elected judges are less worthy of a presumption of impartiality and are, somehow, judges of a lesser stripe. This would be deeply unfair: Most elected judges are every bit as dedicated to the rule of law and their integrity as their federal brethren. Federal oversight of state judicial ethics would also place the Supreme Court in the position of greatly burdening, and potentially vitiating, the entirely valid constitutional choice of 39 states to elect judges.

Worse, to federalize is to homogenize. Justice Benjamin’s unfortunate choice is no reason to damage the states’ role as what Supreme Court Justice Louis Brandeis called “laboratories of democracy.” States feature a rich diversity of methods for selecting judges. Some have a mix of elected judges and judges appointed by the governor. Others are elected for varying terms of years, while still others are appointed by governors but then subject to “retention elections,” in which voters decide whether to keep the judge on the bench. Decades of judicial activism suggest that the federal model is far from perfect. That the states function as “laboratories,” testing diverse ways of resolving this constitutional conundrum, can only be to the good.

West Virginia certainly does not need the Supreme Court to prevent another Caperton situation. In the aftermath of the 2004 election, the state imposed a $1,000 cap on independent expenditures in judicial elections. Many states are exploring campaign-finance and recusal laws to resolve the tensions facing an elected judge. If federal courts handle the worst cases of state judicial conduct, legislators will find it easier to avoid grappling with profound questions about the role of courts and judges.

A decision ushering in federal oversight of state judges’ ethics would also come back to haunt the federal courts. One consequence would be a workload-busting deluge of new federal appeals of state court decisions, grounded in various alleged biases, some election-related and others not, of state judges. Moreover, if the Supreme Court suggests that elected judges cannot be trusted to police themselves, many will conclude that no judge can. If the court treats judges as susceptible to pressures and blandishments, it implicitly legitimizes greater outside control of all judicial institutions.

For all these reasons, the Supreme Court must act with restraint. Ideally, it will do no more than express its doubts about Benjamin’s decision and, eyebrows raised, send Caperton back to the West Virginia Supreme Court with instructions to take another look at the recusal question and provide a reasoned explanation of its decision. And if West Virginians don’t like their court’s ruling, they’ll have the opportunity to register their discontent when the justices come up for reelection.