Ethics Resource Center

Published: April 27, 2009

The Policy Report
By Paula J. Desio, ERC Chair for Ethics Policy

Judging the Judges

The U.S. Supreme Court is currently examining the proper standard for determining impartiality when elected state judges accept campaign contributions from parties who later find themselves in a dispute before the judge.

At the same time, in an effort to close the “revolving door” in Washington, President Obama has insisted that any executive branch agency official must be disassociated from an industry regulated by, or doing business with, his or her agency for two years prior to public service.  (He waived the ban a few short weeks after taking office on the basis that the rule was impractically narrow in the search for particular talent in the Department of Defense.)

Both cases remind us that the standard for determining conflicts of interest in the public arena sometimes lags behind those adopted by corporate leaders in private enterprise.
The Supreme Court case, Caperton v. Massey Coal Company, sets one aspect of this issue in stark relief.  Following a $50 million West Virginia jury verdict against Massey for fraudulently driving a small competitor, the Harman Mining Corporation, into bankruptcy proceedings, Massey’s chief executive appealed to the West Virginia state Supreme Court.  One of the five judges hearing the appeal had received a $3 million election campaign contribution from Massey’s CEO in the interim between the jury verdict and the appeal. The justice refused to recuse himself on the basis that “no objective information is advanced to show that this justice has a bias for or against any litigant.”   Ultimately, he cast the deciding vote that overturned the damage award against Massey.

Harman and its other bankrupt affiliates then appealed to the United States Supreme Court. The heart of their argument is that the West Virginia appeals judge was constitutionally required to recuse himself from hearing and deciding the damage award. The “extraordinary financial support” for his reelection campaign by Massey’s chief executive, they contend, created an objective probability that he was biased in favor of Massey.  The U.S. Supreme Court, which heard oral argument on the case in early March, is now considering whether the mere perception of lack of impartiality by a state judge rises to the level of a constitutional violation under the due process clause of the Constitution.   
Government reform groups and business interests have joined in supporting the position that the “outsized campaign contributions” in this case clearly create a perception of bias that undermines confidence in the judiciary

Lockheed Martin, Pepsico, and Wal-Mart Stores1 have aligned with Transparency International-USA and the Committee for Economic Development, a nonprofit, non-partisan business-led policy organization, in a friend of the court filing to argue that public and business confidence in judicial decision-making will continue to erode absent a much-needed benchmark for judicial recusal standards.  Specifically, they suggest that the “outsize campaign contribution” made by Massey’s owner goes over the line.  

Supporting their argument is a 2007 Committee for Economic Development survey (http://faircourts.org/files/CED-ZogbyPoll2007.pdf) indicating that 80 percent of business leaders are concerned that financial contributions have a major influence on decisions rendered by state and local judges, and prefer that judges recuse themselves from cases involving campaign contributors.  Scores of other organizations representing a broad, and often otherwise conflicting, range of interests in the political spectrum have also lined up on the side of promoting stricter and more uniform conflict of interest standards for state judiciaries.  

Conflict of interest standards have a two-fold purpose.  They are meant to ensure that officials and their associates do not personally profit from public service. They also are intended to foster public confidence in the government as an impartial steward of public trust. The current debate goes well beyond determining whether there is an actual conflict of interest. The West Virginia judge determined that, in fact, he had no actual conflict under these standards.  The controversy extends to the perception of a conflict of interest and the ensuing expectation of impartiality in conducting the nation’s business.  The perception itself directly affects the public’s level of confidence in the fairness of the outcome, and ultimately serves as the bedrock of public confidence in the rule of law. 

Judges generally make their own decisions about recusal, typically on their own initiative or in response to a motion filed by a party in the case.  Adverse decisions must be appealed by the losing party, thereby protracting the litigation and related costs for both the individual litigant and the taxpaying public that funds the judicial system.

Whether the Supreme Court can be persuaded to set a uniform standard for state court judges through the due process clause of the Fourteenth Amendment remains to be seen. There is ample indication, however, that the standard of actual lack of objectivity is out of sync with similar public and private sector standards.

Federal judges, who are appointed for life, must recuse themselves if their “impartiality might reasonably be questioned,” a high standard set by Congress more than 30 years ago.  In the federal judicial Code of Conduct, this standard has been broadly articulated as “an appearance of impropriety” and extends to all activities in which the judge is involved. Last month, the federal judicial code was substantially revised to provide specific guidance on the extent of this standard.  Effective July 1, the code will prescribe that an “appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”  

The Model Code for Mediators, many of whom work in the state and federal court systems, embraces an equally strict standard by defining a conflict of interest as “a dealing or relationship that might create an impression of possible bias.” And, in the private sector, corporate boards of directors are typically expected to disclose conflicts and recuse themselves whenever personal interests may appear to be adverse to the company’s interests as a whole, not just to a particular matter under consideration.

In contrast to the federal system, 39 states elect judges to both trial and appeals courts. Campaign contributions funding media spots for judicial campaigns have increased exponentially in recent years, resulting in some highly visceral advertising attacks and very visible campaigns in a number of states.  If judges make politically charged campaign promises and accept funding from interests with whom they can reasonably be seen to be aligned, then requiring recusal is a balanced solution within an electoral system where campaign contributions are considered a vital expression of free speech.  One can hope that the Supreme Court sees it the same way and raises the ethical bar at least a notch for state judges.  Presuming that the Supreme Court would take the least intrusive means of resolving this matter, an even better alternative is for state judges voluntarily to adopt more stringent standards and methods for resolving conflicts of interest.  Judging by the number and diversity of organizations that weighed in on the Caperton case to seek stricter standards, the situation is ripe for resolution.

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In This Issue

• Do the Right Thing When Times are Tough
  Column By Patricia J. Harned, Ph.D. President, ERC
• Judging the Judges: The Policy Report By Paula J. Desio, ERC Chair on Ethics Policy
  
• Book Review By Frank J. Navran
  
• PACE Leadership In Ethics Award Presented to L'Oreal CEO Jean-Paul Agon on March 18, 2009
  - Read press release
  - Read acceptance speech