An appalling example of where huge campaign contributions for judges can lead is Caperton v. Massey, a case now before the Supreme Court of the United States. A West Virginia jury awarded damages of $50 million in a tort action against the A.T. Massey Coal Co. While the case was on appeal, Massey's CEO, Don Blankenship, contributed $3 million on behalf of Brent Benjamin, a candidate for the West Virginia Supreme Court of Appeals, either by himself or through a political action group. (That was 60 percent of all spending in support of Benjamin.) Benjamin was elected. When the court heard Massey's appeal, Benjamin declined to recuse himself from the case. The court reversed the damage judgment, deciding in Massey's favor by a vote of 3 to 2. Justice Benjamin cast the deciding vote.Say it again: the claims of elementary justice here seem strong. It is one of those Only in America moments. Only in America could a reviewer for a liberal, intellectual magazine make such a pale comment, when faced with a tale of outright corruption. Only in America could such a dodgy system as the election of judges be countenanced. Only in America could a Supreme Court be reluctant to get involved in a case of judicial corruption; no maybe not just America, maybe some countries with names ending in 'stan' as well.
The claim now before the US Supreme Court is that Benjamin's refusal to recuse himself denied Massey's opponents the due process of law guaranteed by the Fourteenth Amendment: fundamental fairness. The Supreme Court evidently had difficulty deciding whether to hear the case, considering it at several conferences before granting review, and it is easy to understand why. Does the Court want to get into the business of deciding whether a state judge's refusal to recuse himself is a violation of the federal Constitution? How much of a campaign contribution should disqualify a judge from sitting on the contributor's case? If expensive judicial elections are allowable, where do we draw such lines? On the other hand, the claims of elementary justice here seem strong.
The reviewer, who is something of a specialist in judicial journalism, has to ask the question "how much of a campaign contribution should disqualify a judge from sitting on the contributor's case?" How about a nice round number, say, Zero? Yes that would work: the Zero Bribes Option, they can call it.
Elsewhere in the NY Review of Books: the Red Cross Torture Report, available for Download; and Hilary Mantel's review of Marilyn French's History of Women; and John Gray's review of Margaret Atwood's Payback; and, what's more, you can listen to Atwood's Massey Lectures for nothing.