The case of Caperton v. A.T. Massey Coal Company, Inc., et al. places before the U. S. Supreme Court the deceptively tricky question of whether an elected judge’s failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates the Due Process rights of the other party. In other words, does this situation, as matter of law, infringe the right of the other party to a fair hearing and impartial adjudication of the dispute? The case is legally challenging because it questions the traditional presumption of judicial independence. The court system trusts judges to make their own decisions about whether they can be impartial in a particular case, because, well…because they are judges. After all, if you can’t trust the judgement of a judge, whose judgement can you trust? Unless a judge has a direct financial interest in the outcome of a case he or she is presiding over, therefore, his or her decision to recuse is voluntary. The judge decides if the judge can be impartial.

But as with most Supreme Court cases, Caperton v. A.T. Massey Coal Company, Inc. has an extreme set of facts. Extreme facts often do not fit established precedent or guidelines, and worse, when they become the basis for changes in the law, the result are often laws that work better for the extreme cases than for the common ones. That is the meaning of the old lawyer’s saying (and I’ve heard old lawyers say it!), “Hard cases make bad law.”

The extreme facts in this case can be summarized easily. Don Blankenship is CEO of a coal company that was hit with a $50 million damages verdict in a West Virginia court. He was determined to appeal, but before he did, he sunk an unprecedented three million dollars into the political campaign of one of the judges running for a seat (occupied by a judge who Blankenship did not like) on the West Virginia Supreme Court. Since the amount his PAC spent to elect Justice Brent Benjamin was more than what was spent by all the other candidates combined, it was no surprise that Benjamin won over Blankenship’s nemesis.

Hugh Caperton, whose coal company was fighting to keep its $50 million dollar verdict by opposing Blankenship in the appeal, was surprised, however. He was stunned, in fact, to see that Benjamin was one of five judges who would rule on the case.

“If you had an important case coming up and your opponent gave $3 million to elect the judge who was going to decide it,” asks Caperton’s attorney, “would you think that was fair?”

In a word, no.

Sure enough, Blankenship won his appeal over Caperton’s company, with the judge he helped elect casting the deciding vote in a 3-2 decision. We don’t know whether Benjamin was more inclined to see the case Blankenship’s way because he owed his election to Blankenship’s support. Current law presumes that Benjamin was able to judge the case fairly. (Sir Thomas More, as a judge, famously accepted a gift that he knew was a bribe, and then ruled against the giver—he also gave away the gift—as a demonstration of his integrity.) But it certainly looked like the fix was in when Benjamin participated in giving his benefactor the result he was seeking. That is why, no matter how close the legal issue may be, the ethical verdict is obvious. It was unethical for Benjamin not to recuse.

Here is a section from the first Canon of the American Bar Association’s Model Judicial Code:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved….

Now here is an excerpt from the second Canon, which is entitled, “A Judge shall avoid impropriety and the appearance of impropriety in all of the Judge’s activities…”

…A judge shall …act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary…A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

Read together, these two sections leave little doubt that Benjamin created an “appearance of impropriety” that did not preserve the integrity of the judiciary, but rather called it into question. Legalistic nit-picking can not argue away such an obvious apparent conflict. Yes…the definition of a financial interest does not include situations where the benefits to the judge have already been received. True…the campaign money was not given with an explicit quid pro quo. But none of that matters in the real world. It looks like a pay-off.

Today American are looking for institutions and individuals to trust, and finding only greed, dishonesty and incompetence. This is no time for a judge to say, “Trust me; I know it looks and smells like a conflict of interest, but really, I can rise above it and be fair and impartial.” It may be legal, but it’s still wrong.