Two years have passed since West Virginia set a bad national example of questionable justice -- yet few reforms have followed the landmark lesson.
In June 2009, the U.S. Supreme Court removed West Virginia Supreme Court Justice Brent Benjamin from a Massey Energy case because Massey's CEO had spent $3 million to elect Benjamin. The justice refused to abstain from the case, and voted in favor of Massey -- but the nation's highest court ousted him and ordered West Virginia to reconsider.
(Subsequently, a replacement judge who didn't benefit from the coal mogul's money voted the same as Benjamin previously did, favoring Massey.)
The breakthrough 2009 ruling spurred a wave of calls for reform, to prevent millionaires from putting favorites onto court benches to gain beneficial verdicts. This alarm increased last year after the U.S. Supreme Court ruled that corporations may pour cash into all election campaigns, including those of judges.
But scant correction has occurred. West Virginia, the heart of the controversy, did nothing to restrict big-money backing of judges -- or to force those judges to recuse themselves when fat-cat donors come before them. Neither did most of America.
In a June 15 editorial titled "Can Justice be Bought?" The New York Times said the 2009 West Virginia case "drove home the need for states to adopt more rigorous rules for recusal. The message has largely gone unheeded."
The Brennan Center for Justice at New York University law school has made the Mountain State case -- Caperton v. Massey -- central in a nationwide drive to prevent cash corruption of courts. The center said this month:
"Judicial election spending has spiraled out of control in the past decade, with high court candidates raising $206.9 million in 2000-2009, more than double the $83.3 million raised in the 1990s. The Caperton case -- in which Massey CEO Don Blankenship spent $3 million to elect Justice Brent Benjamin while he was seeking to overturn a $50 million jury award -- sparked national publicity on the potential conflicts caused by special-interest spending on judicial elections. ... Most states have failed to take any meaningful action."
Why hasn't West Virginia's Legislature or Supreme Court cleaned up this potential conflict? A simple rule change, forcing judges to step aside when major donors appear before them, would cure it.
The American Bar Association's House of Delegates is to weigh this problem at its August session. If the ABA revises its model code of judicial conduct to mandate recusal, many states probably would adopt the ban. We hope the ABA does, and West Virginia complies.