Buying Elections Is Not Free Speech, Part II

It is welcome news to see the recent decision by the U.S. Supreme Court mandating the recusal of the Chief Justice of the West Virginia State Supreme Court of Appeals from a case involving a company whose CEO invested millions in electing him to the bench. Last November I blogged about, among other issues, the circumstances that led our Nation’s highest court to grant certiorari in the matter of Caperton v. A. T. Massey et al.

While the 5-4 decision doesn’t address everything I have previously written about, it does answer a fundamental question with regard to our rights to due process and equal protection. Rather than rehash the arcane circumstances that put this important case before the Supreme Court (and as the basis for a John Grisham novel,) I will simply ask the following:

If you felt you had been wronged by a company and sought your day in court, could you expect to receive your constitutional right to a fair hearing in front of an impartial tribunal if you knew that one of the justices on that tribunal had received millions in support from the CEO of the company you were suing in order to help elect him/her to the bench?

My guess is that any rational human being would easily say “No Way.” Thankfully, the court agreed, but by the slimmest of margins. In rejecting the argument that this decision will lead to an avalanche of lawsuits, Justice Kennedy wrote for the majority:

The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

Many different opinions will be aired out over the next few months concerning where to go next with our state’s method of judicial selection. Some advocate a system of optional public financing for judicial races. Others prefer appointment-style algorithms while still others advocate a nominee/legislative confirmation method. Without getting into a full blown discussion as to which is best (not at this time, anyway) it should be noted that West Virginia’s current system of partisan election of judges, as flawed as it may be, was made stronger by the recent Supreme Court decision. At least now, when overwhelming financial support (direct or not) is given to a judicial candidate, the public at large can expect that prospective justice to step aside in cases involving those benefactors.

To be honest, you have to wonder if this decision will lessen the influence of money in judicial elections all on its own. If persons or interests know they cannot expect a return on their investment when dumping millions into a judicial campaign, they very well may stop doing it altogether. One can only hope.