The Supreme Court of the United States took a stand against “justice for sale” by holding elected judges should not hear cases involving large political donors.  The Court surprised many in the legal community with its decision in Caperton v. Massey, reversing a decision by the West Virginia Supreme Court.  The West Virginia court overturned an $82.7 million judgment against Massey Energy Company.  The problem?  West Virginia Supreme Court Justice Brent Benjamin, who ruled with the majority in the 3-2 decision, had received more than $3 million from the chief executive of Massey in donations to his election campaign.  The losing party, Harman Mining Company, claimed Justice Benjamin should have been recused (removed from deciding the case) because of bias.

Justice Anthony Kennedy issued the opinion for the 5-4 majority, writing, “‘Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.”

The reverberations from this opinion will echo through courts around the country in states where judges are elected.  Texans elects their judges, from the Justice of the Peace to the Supreme Court of Texas. ”Judicial elections have become more expensive, more negative and more subject to influence by special interest groups,” said Chief Justice Margaret Marshall of Massachusetts, president of the Conference of Chief Justices, in a story in the New York Times.  The $3 million deposited into Justice Benjamin’s West Virginia campaign account is just an example of what is at stake in judicial elections, and how far people will go to influence them.

Justice Kennedy points out, ”Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.” However, expect to see many allegations of such an exception in the future, and Justice Kennedy’s reference to “litigant or attorney” means large donations by lawyers and law firms to judicial campaigns are also subject to scrutiny.  The question that remains is whether the amount of financial support is the only issue.  What about a trial court judge whose entire campaign costs substantially less, but who receives a large percentage of his donations from one individual, company, lawyer or law firm – will that judge’s fairness be called into question?

We can expect this ruling to rekindle the debate about the propriety of electing judges.  Make no mistake – appointed judges are just as much a product of politics as elected judges.  Many of our Republican trial court judges over the past fourteen years (the Bush-Perry era) began their judicial careers as gubernatorial appointees, and no surprise, all of them were loyal Republicans.

The solution to this problem is not ending the process of electing judges, or even making judicial elections non-partisan.  Texans should elect their judges, and party affiliation provides meaningful information to the voter. The solution is to get the money out of judicial campaigns by publicly financing them, from the primaries through the general elections.  I do not think we get the stink out of judicial selection until we get the money out of the process.  I am not casting stones at any of our sitting trial court judges in Harris County, Republicans or Democrats.  However, the Caperton case turned on the “appearance of bias,” and that is difficult to avoid when the judge deciding your case received a big fat check from your opponent or his lawyer.