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Common Sense And Justice Collide

Sometimes, despite itself, the Supreme Court manages to squeeze out a ruling that comports with general common sense. This is one of those times—but it sure wasn't easy.

In a 5-4 ruling authored by Justice Anthony M. Kennedy, the Court declared Monday morning in Caperton v. A.T. Massey that the Constitution requires a state court judge to recuse himself from a lawsuit when one of the litigants in that case had previously spent massive amounts of money (millions of dollars) to help support the judge's campaign for judicial office. In such an extreme and egregious instance, the Court ruled, the "probability of actual bias" was "too high to be constitutionally tolerable"under the Due Process Clause of the Fourteenth Amendment.

The facts of the case are grotesquely provocative. A fellow named Hugh Caperton sued Massey Energy Co. and in 2002 won a $50 million judgment against the company. As most losers do, Massey appealed. While the appeal was pending, Massey went out and spent about $3 million to support a judicial candidate named Brent B. Benjamin—a figure representing more than half of the candidate's campaign war chest. Benjamin won the election by a narrow majority, which won him the right to hear Massey's appeal. Guess how Benjamin voted, not once but twice? That's right-- for Massey and against Caperton.

"We conclude," Kennedy wrote, "that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison tothe total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."

In other words, when a fellow buys himself a judge he shouldn't expect that judge to preside over his next case. By this point, you are probably saying to yourself: duh. Of course the law would preclude a judge from sitting in a case involving a litigant to whom he owed his seat on the bench. Who among us would want to be the other party in the case? No one, apparently, except for the Supreme Court's four most conservative members, each of whom refused Monday to recognize the problem as a constitutional one.

Chief Justice John G. Roberts, Jr., now famous for his umpire analogy about judges merely calling balls and strikes, wrote that the new constitutional rule "will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." Clearly, the Chief Justice is still standing by his umpire analogy even when it's been determined that the umpire owes his job to one team and not the other.

The Chief Justice then cited no fewer than 40 legal and constitutional questions that he said would be raised by the majority's recognition of the new recusal rule. "It's an old cliché," the Chief Justice wrote, "that sometimes the cure is worse than the disease." Creating this new way for litigants to recuse judges, he wrote, "will itself bring our judicial system into underserved disrepute, and diminish the confidence of the American people in the fairness and the integrity of their courts."

There you have it, as clear as mud. According to the dissenters, including Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr., allowing a bought-and-paid-for judge to preside over a case involving the buyer does not bring disrepute to the world of the law. But creating a legal standard that would prevent such travesties from happening would. This nonsense was just one vote away from being the law of the land. Fortunately, for one day and one case anyway, sense and sensibility prevailed.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.

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