The “fundamental tension between the ideal character of the judicial office and the real world of electoral politics” has been expressly recognized by the United States Supreme Court on more than one occasion and implicitly reiterated on many more including most recently in Caperton v. Massey. That West Virginia case resulted in a 5-4 majority of the U.S. Supreme Court overturning a $50 million West Virginia state court judgment against Massey as a result of the constitutionally erroneous and prejudicial refusal of West Virginia Supreme Court Justice Brent Benjamin to recuse himself. Don Blankenship, CEO of Massey Energy spent $ 3 million to elect now Justice Benjamin and defeat his opponent, then an incumbent justice for election to the highest court in West Virginia. At the time Caperton v. Massey was pending on the West Virginia Supreme Court’s docket. The 5-4 majority of the U.S. Supreme Court speaking through Justice Anthony Kennedy held that the $3 Million contribution created a “constitutionally unacceptable probability of bias” on the part of Justice Benjamin and for that reason, he should have recused himself from the case. His failure to do so violated Massey’s federal constitutional right to due process and accordingly required reversal of the judgment of the Supreme Court of West Virginia to affirm and a remand for a second West Virginia Supreme Court review of that state court judgment sans Justice Benjamin. The four justice minority in Caperton v. Massey, speaking through Chief Justice John Roberts initially acknowledges the universal recognition of “the need to maintain a fair, independent and impartial judiciary — and one that appears to be such.” But then The Chief Justice bemoans and belittles the majority’s attempt to develop an “objective standard” for when a judge should recuse by imposing the “probability of bias” standard which Chief Justice Roberts opines will “undermine rather than promote these values.” Justice Anton Scalia, in separately joining Chief Justice Roberts’ dissent and further explicating it complains that “the principal consequence of today’s decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 states that elect their judges.,” (which include Maryland). Justice Scalia then predicts ominously (if you are not a lawyer) that the U.S. Supreme Court majority’s opinion will “add to the vast arsenal of lawyerly gambits what will come to be known as the ‘Caperton Claim.’ – the facts relevant to adjudicating it will have to be litigated – and likewise the law governing it, which will be indeterminate for years to come, if not forever. Many billable hours will be spent in poring through volumes of campaign finance reports and many more in contesting nonrecusal decisions through every available means.” This concern and the legal Tsunami which is predicted to accompany it is compounded by Chief Justice Roberts’ further observation that “at the most basic level, it is unclear whether the new “probability of bias” standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally. Chief Justice Roberts then poses 40 “fundamental questions” which he predicts will have to be answered by trial and appellate courts more and more frequently on a case by case basis, presumably as a part of the process of litigating what Scalia brands as “Caperton Claims.” Some of the more perplexing if not provocative questions among them are: “1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”? 7. How long does the “probability of bias” last? Does the “probability of bias” diminish over time as the election recedes? Does it matter whether the judge plans to run for reelection? 9. What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving say, abortion rights if he or she has received “disproportionate “support from individuals who feel strongly about either side of the issue? If the supporter wants to help elect judges who are tough on crime”, must the judge recuse in all criminal cases? 10. What if the candidate draws disproportionate” support from a particular racial, religious, ethnic or gender based group and the case involves discrimination or other issue of particular importance to that group? 18. Should we assume that the elected judges feel a “debt of hostility” towards major opponents of their candidates? Must a judge recuse in cases involving individuals or groups who spent large amounts of money trying to defeat him or her?
This writer agrees with the majority’s decision in Caperton v.Massey, but I recognize the price that following the logic of the opinion which supports that decision may portend. The important message that the debate between the 5 Justice majority and the 4 Justice minority in that case delivers clearly and unequivocally is that it is a metaphor for the political debate which ought to take place in Maryland about whether Circuit Court Judges should be subjected to contested judicial elections.
To continue to require circuit court judges in Maryland to undergo contested judicial elections will as Chief Justice Roberts notes “require state and federal judges simultaneously to act as political scientists (why did candidate x win the election?), economists (was the financial support “disproportionate?”) and psychologists (is there likely to be a debt of gratitude?)” Do we really want a system in Maryland which consistently requires these kinds of questions to be asked and answered with increasing frequency and at considerable expense in time and money? The answer I submit in No! It should be replaced by a system which combines judicial evaluations (a sleeping dog which I will awaken in my next column) and retention elections based on those evaluations of the judges’ records. A judge should be retained if he or she demonstrates over a ten year period the qualities we all agree are important and the judge should be removed if he or she does not do so. The leaders of all three branches of government should unite on behalf of that principle of judicial accountability this year in the Maryland General Assembly. The judiciary and the MSBA should begin the work necessary to establish a meaningful system of judicial evaluations in this state and thereby make the politics of eliminating contested judicial elections of circuit court judges more explainable and acceptable while contemporaneously insuring real accountability of judges to the public.