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When Judges Go Bad

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
You are a litigant in a big civil case. Good news! You win a $50 million jury verdict. Bad news! Your opponent appeals the verdict, thus guaranteeing the matter will be tied up for years. Even worse news! Your opponent also goes out and essentially "buys" itself an appellate judge, by contributing millions to a sympathetic fellow's election campaign, and when that judge wins a spot on the bench he promptly votes to overturn your valuable judgment.

This isn't a Frank Capra script. It's not John Grisham's "Appeal." It isn't some new reality show on TruTV. It's the direct and natural (and unjust and unwise) result of a terrible idea that has turned into a national trend: requiring state judges to gain election, or retention, to the bench by popular vote. Once heralded as a way to make judges more "accountable" to the people they judge, the new paradigm instead has turned many of them into plain, old sleazy politicians -- who if they win then get to hide behind judicial rules of ethics! The old accountability of judges was to objectivity and neutrality; the new accountability is to the Almighty Buck that funds negative judicial campaign advertisements.

This mess comes under review Tuesday at the United States Supreme Court. The Justices are going to hear argument in Caperton v. Massey, one of most one-sided cases of this or any other recent term. The dispute offers a grand opportunity for the Court to require all state judges, and especially those elected or retained by popular vote, to step aside from cases when their electioneering efforts and fundraising create conflicts that no amount of kind assurances can dissolve. Anything short of such a strong standard would represent an abdication of the Court's responsibility to fix broken parts of the nation's criminal justice system.

The facts are brutal. Hugh Caperton is the plaintiff. Many years ago, he sued Massey Energy Co. and in 2002 won a $50 million judgment against the company, which promptly appealed. While the case was on appeal, Massey went out and spent $3 million - nearly 60 percent of the entire campaign war chest - on a judicial candidate named Brent B. Benjamin, who promptly won the election and got the right to have a vote in Massey's appeal. Would anyone want to trade places with Caperton as a litigant in these circumstances?

Not once but twice has Judge Benjamin refused to recuse himself from the Massey case. And not once but twice has he voted to overturn Caperton's judgment. Judge Benjamin says that since he has no "pecuniary" interest in the outcome of Caperton v. Massey he should be allowed to continue to sit in judgment upon it. Technically, Judge Benjamin is right. He won't earn a dime no matter how the case comes out. But his argument completely ignores the $3 million he already received from one of the litigants. Payback may be a bitch but in this case she represents an actionable conflict of interest, real or reasonably perceived, for a judge whose conduct here has earned the wrath even of his fellow jurists in Charleston.

Judge Benjamin and his fellow travelers also offer the "parade of horribles" argument typically used by litigants playing a losing hand. He argues that any rule that would require him to recuse himself in these circumstances would necessarily require the recusal of other judges who take significant campaign contributions from people who ultimately become litigants. So what? If that's the case - and it probably is - the solution is not to allow tainted judges to continue to rule on cases involving their campaign contributors but to preclude judges from taking campaign contributions!

This new "conflict" problem thankfully does not exist in federal courts because the Constitution guarantees life tenure absent extraordinary circumstances. Nor am I aware of any great abuses of judicial power, or any pattern of unreasonable failures to recuse, in those states which so far have wisely refused to lower the status of their judges to political hacks. Even state judges who are selected by governors, and then retained by popular vote, don't have to worry about paying for negative campaign ads or paying back their fundraisers.

The rise of judicial campaigning purports to solve a problem that didn't exist. It has dragged judges down into the mire of politics and made them susceptible to precisely the sort of ridicule and scorn that Judge Benjamin faces today. It has made judges more, not less, arrogant and less, not more, accountable. Most importantly, it has made honest litigants like Caperton rightfully skeptical of the judiciary's ability to be fair and neutral to their causes and cases. In short, it's been a colossal disaster, devoid of virtually any redeeming qualities. That's why the Supreme Court must speak decisively here, before things get even worse.