Besides being a poorly-reasoned decision that threatens independent political activity, the Supreme Court’s holding this week in Caperton v. Massey Coal Company should raise concerns among liberal advocacy groups that are trying to get Sonia Sotomayor confirmed. Taken to its logical conclusion, Caperton might require her to recuse herself in large number of cases. In Caperton, a liberal majority led by Justice Kennedy decided that a newly-elected West Virginia Supreme Court justice had to recuse himself from a case involving the Massey Coal Company. Massey’s CEO had spent $3 million dollars to attack the incumbent justice who had lost the election, someone the CEO thought was an activist judge who favored the plaintiff’s bar.
Kennedy concluded that the “perception” of possible bias by the winning judge because of the independent political spending by the CEO against his opponent was a constitutional due process violation, despite the fact that the CEO only contributed $1,000 to the challenger’s judicial campaign. Kennedy ignored the fact that the plaintiffs’ bar had spent $2 million unsuccessfully to reelect the incumbent justice and defeat the challenger, and kept mistakenly referring to the $3 million that the CEO spent as a “contribution” to the challenger, even though it was completely independent political spending that the challenger had nothing to do with.
This biased standard is so amorphous, and so incapable of definition or limitation, that it will open up the courts to a flood of frivolous claims. It raises serious questions of whether Sonia Sotomayor will have to recuse herself from any cases involving the liberal groups that are spending so much money, time, and resources to get her confirmed, since it will raise the perception of bias by Sotomayor in their favor. If independent contributions are enough to raise questions in judicial elections, then the Court’s dubious and unbounded reasoning would seem to create similar appearances of impropriety concerns in the context of judicial confirmations—where the stakes and expenditures are high. In addition to suppressing the speech of those supporting a judge, the Caperton decision clearly by its own terms endangers our ability to engage in independent political speech and activity, criticizing bad judges and bad decisions. It once again “constitutionalizes” an issue that should be left to state courts and state legislatures, which have full authority to determine what constitutes bias in their judicial systems.